Food Distribution Programs: Improving Access and Parity, 54908-54933 [2023-17467]

Agencies

• DEPARTMENT OF AGRICULTURE
• Food and Nutrition Service

[Federal Register Volume 88, Number 155 (Monday, August 14, 2023)]
[Proposed Rules]
[Pages 54908-54933]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17467]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 88 , No. 155 / Monday, August 14, 2023 / 
Proposed Rules

[[Page 54908]]



DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 247, 250, 251, 253, and 254

[FNS-2023-0026]
RIN 0584-AE92


Food Distribution Programs: Improving Access and Parity

AGENCY: Food and Nutrition Service (FNS), U.S. Department of 
Agriculture (USDA)

ACTION: Proposed rule.

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SUMMARY: The Food and Nutrition Service is proposing to amend its 
regulations to make access and parity improvements within several food 
distribution programs, including the Commodity Supplemental Food 
Program (CSFP), the Food Distribution Program on Indian Reservations 
(FDPIR), The Emergency Food Assistance Program (TEFAP), and USDA Foods 
disaster response. The proposed provisions use plain language to make 
them easier to read and understand.

DATES: Written comments must be received on or before October 13, 2023 
to be assured of consideration.

ADDRESSES: The Food and Nutrition Service, USDA, invites interested 
persons to submit written comments on this proposed rule. Comments may 
be submitted in writing by one of the following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Regular U.S. Mail: Food Distribution Policy Branch, Policy 
Division, Food and Nutrition Service, P.O. Box 2885, Fairfax, Virginia 
22031-0885.
     Overnight, Courier, or Hand Delivery: Gregory Walton, 
Supplemental Nutrition and Safety Programs, Food Distribution Policy 
Branch, Food and Nutrition Service, 1320 Braddock Place, 3rd Floor, 
Alexandria, Virginia 22314.
     All written comments submitted in response to this 
proposed rule will be included in the record and will be made available 
to the public. Please be advised that the substance of the comments and 
the identity of the individuals or entities submitting the comments 
will be subject to public disclosure. FNS will make the written 
comments publicly available on the internet via https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:  Gregory Walton, Program Analyst, Food 
Distribution Policy Branch, Supplemental Nutrition and Safety Programs, 
U.S. Department of Agriculture's Food and Nutrition Service, 1320 
Braddock Place, 3rd Floor, Alexandria, Virginia 22314 at 703-305-2746 
or [email protected].

SUPPLEMENTARY INFORMATION: 

Section 1: Background and Discussion of the Proposed Rule

Background

    The Department of Agriculture's (the Department or USDA) Food and 
Nutrition Service (FNS) works to end hunger and obesity through the 
administration of 16 federal nutrition assistance programs. The 
Coronavirus Disease 2019 (COVID-19) pandemic had devastating impacts on 
our nation's food systems and economy, forcing millions of Americans to 
turn to the country's emergency food network for aid. Through the 
provision of food and administrative funding, USDA FNS food 
distribution programs have assisted this network--made up of thousands 
of food banks, food pantries, Tribal governments and other community 
partners--in feeding those in need.
    As the pandemic subsides, FNS has a key opportunity to apply 
lessons learned to improve food distribution programs, including 
through regulatory updates. These proposed changes are intended to help 
ensure that eligible populations are able to more easily access the 
programs and streamline requirements for program operators.
    This proposed rulemaking would amend regulatory provisions at 7 CFR 
247, 250, 251, 253, and 254 to make access and parity improvements 
within several food distribution programs, including the Commodity 
Supplemental Food Program (CSFP), the Food Distribution Program on 
Indian Reservations (FDPIR), The Emergency Food Assistance Program 
(TEFAP), and USDA Foods disaster response. The proposed changes are 
discussed in detail below.

Discussion of the Rule's Proposed Provisions

a. Commodity Supplemental Food Program
    Proposed revisions to CSFP regulations at 7 CFR 247 focus on 
increasing access to the program and standardizing language throughout 
the part. Program access would be increased by updating income 
eligibility guidelines for program participants. The update would also 
improve the readability of CSFP income calculation requirements by 
removing outdated references to the Special Supplemental Nutrition 
Program for Women, Infants, and Children (WIC).
i. Technical Updates to the Entire Part 247
    The Department proposes technical updates throughout part 247. The 
term ``elderly'' is proposed to be replaced with ``participants,'' 
because CSFP is limited to participation by senior adults aged 60 years 
and above as of February 2020. The Agricultural Act of 2014 (Pub. L. 
113-79, the Farm Bill) amended CSFP's eligibility requirements to phase 
out the participation of women (under 60 years of age), infants, and 
children in the program, transitioning it to a seniors-only program. 
The Department recognizes that many Tribal communities recognize elders 
starting at the age of 55; however, per the Agriculture and Consumer 
Protection Act of 1973 (Pub. L. 93-86, as amended), which authorizes 
CSFP, assistance under the Commodity Supplemental Food Program must 
only be provided to low-income persons aged 60 years and older. In 7 
CFR 247.2, the Department proposes removing reference to women, 
infants, and children receiving CSFP benefits as they are no longer a 
part of the program. Additionally, the Department proposes replacing 
the outdated term ``commodities'' with ``USDA Foods.'' \1\
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    \1\ (250.2) Donated foods means foods purchased by USDA for 
donation in food assistance programs, or for donation to entities 
assisting eligible persons, in accordance with legislation 
authorizing such purchase and donation. Donated foods are also 
referred to as USDA Foods.

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[[Page 54909]]

ii. Updates to Definitions (Sec.  247.1)
    The Department proposes a new definition for the term ``USDA 
Foods'' to replace the outdated definition of ``commodities.'' The 
definition of ``elderly persons'' is proposed to be deleted, since 
Sec.  247.9(a) specifies that CSFP-eligible individuals must be at 
least 60 years of age and because the term ``elderly persons'' is being 
replaced throughout the part. Finally, the definition of ``proxy'' is 
proposed to be updated to exclude a ``participant's adult parent,'' 
because children are no longer eligible to participate in CSFP under 
the Agricultural Act of 2014 (Pub. L. 113-79).
iii. Public Posting of Availability of USDA Foods and State Plans 
(Sec.  247.5)
    The Department proposes adding a new provision at Sec.  
247.5(b)(16), which would require State agencies to make publicly 
available a list of all CSFP distribution sites, including both local 
agencies and agencies operating under an agreement with a local agency. 
At a minimum, the information would be required to be posted on a 
publicly available internet web page and updated on an annual basis, 
listing the name, address, and a contact telephone number for each 
site. State agencies are also encouraged, but not required, to develop 
tools to aid eligible individuals in accessing the program (e.g., a 
searchable tool by ZIP code). State agencies may share any online 
resources they create with other organizations that serve CSFP-eligible 
individuals. Publicly listing all CSFP distribution sites would 
increase access to the program by helping direct potential participants 
to their closest distribution site.
    The Department also proposes adding a new provision at Sec.  
247.5(b)(17), which would require State agencies to make publicly 
available the State Plan that is currently in use by the State agency 
on an internet web page. This proposed addition would modernize the 
current requirement at 7 CFR 247.6(a) that a copy of the State Plan 
must be kept on file at the State agency for public inspection and 
allow easier access to State Plans. The Department also proposes 
amending 7 CFR 247.6(a) to reflect the new requirement that State Plans 
be posted publicly on internet web pages. See section iv. State Plan 
Requirement and Flexibility for Identification Verification for more 
details.
iv. State Plan Requirement and Flexibility for Identification 
Verification (Sec.  247.6)
    As mentioned above in section iii. Public Posting of Availability 
of USDA Foods and State Plans, the Department proposes amending Sec.  
247.6(a) to reflect that a copy of the current State Plan must be made 
available on a publicly available internet web page in addition to the 
existing requirement that a copy be kept on file at the State agency 
for public inspection. This proposed amendment would modernize the 
current requirement and allow for easier access to the State Plan by 
the public.
    To maintain program fairness and accountability, the Department 
also proposes amending Sec.  247.6(c) to require State Plans to include 
a description of the process State agencies have in place to verify the 
identity of participants, or their proxies, before receipt of USDA 
Foods. The proposed process would be subject to approval by FNS. This 
is consistent with the Department's proposed change at Sec.  247.10 to 
replace the current federal regulatory requirement at Sec.  247.10(b) 
that local agencies must require each participant or their proxy to 
present some form of identification at the time of distribution. The 
proposed changes would add language that local agencies must have a 
process in place to verify the identity of participants, in accordance 
with State agency requirements.
    Taken together, the proposed changes would provide CSFP operators 
flexibility in how they verify the identity of participants or their 
proxies before distribution of USDA Foods, i.e., using the latest 
technology. The two proposed provisions would help support State and 
local agencies in modernizing the program's delivery methods, a change 
brought on by the unique operational challenges with home deliveries 
during the COVID-19 pandemic. See ``vi. Changes to Identification Check 
at Distribution (Sec.  247.10)'' for further details.
v. Eligibility Requirements (Sec.  247.9)
    The Department proposes amending Sec.  247.9(c) to increase CSFP's 
maximum income eligibility guidelines to 150 percent of the U.S. 
Federal Poverty Guidelines published annually by the U.S. Department of 
Health and Human Services. This would be an increase from the current 
limit of 130 percent of the Federal Poverty Guidelines. The proposed 
increase to the income eligibility guidelines would provide increased 
access to the program by increasing the program's total eligible 
population and assist States in meeting their assigned caseloads. 
Increasing the maximum income eligibility guidelines would help bridge 
the gap between the number of seniors served and the total eligible 
caseload population nationwide without adding an administrative burden 
to applicants and local agencies.
    Further, health data indicates that six in ten Americans live with 
at least one chronic disease, while one in four individuals live with 
two or more chronic conditions.\2\ The prevalence of one or more 
chronic medical conditions increases with age, indicating that many 
adults of CSFP-eligible age are likely to live with one or more chronic 
medical conditions.\3\ Additionally, data from the Administration for 
Community Living indicates that adults over age 65 spend an average of 
19 percent of their household income on out-of-pocket healthcare 
expenditures. In 2014, people ages 65 years and up spent an average of 
$19,098 per year on health spending, 87 percent higher than the $10,212 
for those ages 45-64 and 293 percent higher than the $4,856 for those 
ages 18-44.\4\ Seniors with incomes below 150 percent of the Federal 
Poverty Income guidelines are significantly more vulnerable to be at 
nutritional risk. Research from the Food Research and Action Center 
provides that there are more than 1.3 million food insecure individuals 
65 years and older, and another 512,000 with very low food security.\5\ 
Through the proposed increase to the CSFP maximum from 130 percent to 
150 percent of the U.S. Federal Poverty Guidelines, the Department 
recognizes that medical expenditures take up a significant proportion 
of many seniors' incomes and allows for expanded access for

[[Page 54910]]

seniors who spend a significant portion of their incomes on such 
expenses.
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    \2\ Fiscal Year 2022 CSFP Caseload Assignment Memorandum. April 
18, 2022. USDA Food and Nutrition Service. Accessed 15 December, 
2022. Available at internet site: https://www.fns.usda.gov/csfp/caseload-assignments-2022-caseload-cycle-and-administrative-grants.
    \3\ Fiscal Year 2022 CSFP Caseload Assignment Memorandum. April 
18, 2022. USDA Food and Nutrition Service. Accessed 15 December, 
2022. Available at internet site: https://www.fns.usda.gov/csfp/caseload-assignments-2022-caseload-cycle-and-administrative-grants.
    \4\ Centers for Medicare and Medicaid Services, Office of the 
Actuary, National Health Statistics Group. Age and Gender: Health 
Expenditures by Age and Gender. Accessed 20 January, 2023. Available 
at internet site: https://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports/NationalHealthExpendData/Age-and-Gender.
    \5\ Food Research & Action Center. December 2019. Hunger is a 
Health Issue for Older Adults: Food Security, Health, and the 
Federal Nutrition Programs. Accessed 15 December, 2022. Available at 
internet site: https://frac.org/wp-content/uploads/hunger-is-a-health-issue-for-older-adults-1.pdf.
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    Although the Department considered the addition of a medical 
deduction for CSFP, the Department believes the proposed increase in 
the gross income limit for CSFP, without the addition of a medical 
deduction, supports simplicity and ease in program administration, 
consistent with current practice. Further, the Department considered 
the increased burden that a medical deduction would place on program 
applicants and participants, which could pose a barrier to 
participation for those who have concerns about sharing health 
information and/or costs.
    The Department seeks public comment on the proposed change to 
increase CSFP's maximum income eligibility guidelines to 150 percent of 
the U.S. Federal Poverty Guidelines without the addition of a medical 
deduction. Additionally, given the discretionary nature of CSFP and the 
need to target limited resources at individuals most in need, the 
Department would like to request public comment from CSFP stakeholders 
regarding whether there is a preference between the current proposal to 
increase CSFP's maximum income eligibility guidelines to 150 percent of 
the U.S. Federal Poverty Guidelines, or an alternate level of 185 
percent of the U.S. Federal Poverty Guidelines. The Department 
recognizes that the alternate level of 185 percent of the U.S. Federal 
Poverty Guidelines would align CSFP with the Senior Farmers' Market 
Nutrition Program (SFMNP), which provides low-income seniors with 
access to access to fresh, nutritious, unprepared, locally grown fruits 
and vegetables, honey, and herbs.
    In Sec.  247.9(d), the Department proposes removing references to 
the Special Supplemental Nutrition Program for Women, Infants, and 
Children (WIC). With this change, the income exclusions that previously 
followed the WIC regulations at 7 CFR 246.7 are proposed to be updated 
to be CSFP-specific by directly listing such exclusions.
    Finally, the Department seeks public comment regarding potential 
future changes to eligibility requirements to allow CSFP applicants to 
demonstrate eligibility for CSFP via participation in another Federal 
means-tested program with income limits at or under the CSFP threshold. 
Per 7 CFR 247.9 Eligibility Requirements, CSFP applicants must meet the 
household income limit to be eligible for the program. Currently, State 
agencies have the option of allowing self-declaration of income or 
requiring proof of income to demonstrate eligibility. The Department is 
considering a future change to allow State agencies to accept 
participation in Federal programs such as the Supplemental Nutrition 
Assistance Program (SNAP), the Food Distribution Program on Indian 
Reservations (FDPIR), and Supplemental Security Income (SSI) as 
demonstrating eligibility for CSFP. The Department is seeking feedback 
from CSFP State agencies, ITOs, and other stakeholders on this 
proposal, and specifically on the following questions:
    1. Are there other Federal programs that you would like USDA to 
consider as options to demonstrate eligibility for CSFP?
    2. Should USDA consider an option for State agencies to have the 
flexibility to include State means-tested programs to demonstrate 
eligibility for CSFP?
vi. Changes to Identification Check at Distribution (Sec.  247.10)
    The Department proposes updating the language in Sec.  247.10(b), 
in conjunction with Sec.  247.6(c), to increase flexibility in local 
agencies' ability to check the identity of participants or their 
proxies before distributing USDA Foods. The Department proposes 
replacing the current federal regulatory requirement at Sec.  247.10(b) 
that local agencies must require each participant or their proxy to 
present some form of identification at the time of distribution with 
the requirement that local agencies must have a process in place to 
verify the identity of participants, in accordance with State agency 
requirements. This proposed change would allow local agencies and 
participants more flexibility in satisfying the requirement and would 
support State and local agencies in modernizing the program's delivery 
methods, for example through innovative partnerships with third-party 
entities, such as entities which deliver food packages directly to 
participants' homes. The COVID-19 pandemic has presented unique 
operational challenges with home deliveries. This proposal would allow 
for flexibility for purposes of verifying receipt of food packages and 
the identity of applicants. Ultimately, in accordance with State agency 
requirements, local agencies must verify participants' identities and 
have a system in place to verify that the USDA Foods are received by 
the participant for which such foods are intended.
vii. Referral Materials for the Senior Farmers' Market Nutrition 
Program (Sec.  247.14)
    The Department proposes updating Sec.  247.14(a) with a new 
paragraph (4) that requires local agencies, where applicable, to share 
written information and referrals to the SFMNP with applicants, 
increasing awareness and access to other senior nutrition assistance 
programs relevant to CSFP participants. Both CSFP and SFMNP work in 
tandem to serve the low-income senior population and the benefits 
provided by each program help meet the nutritional needs of seniors at 
nutritional risk. Adding this information sharing requirement increases 
access to USDA programs by directly informing potentially eligible 
individuals of their access to SFMNP, increasing low-income seniors' 
ability to access fresh, nutritious, unprepared, locally grown fruits, 
vegetables, honey, and herbs, where applicable. The information sharing 
requirement may help increase the domestic consumption of nutritious 
foods and directly support locally-grown foods offered through farmers' 
markets, roadside stands, and community supported agricultural 
programs.
viii. Nondiscrimination Statement Update (Sec.  247.37)
    The Department proposes updating Sec.  247.37(a) to advise the 
public that CSFP must be operated in accordance with the most up-to-
date USDA nondiscrimination statement. The current USDA 
nondiscrimination statement applicable to CSFP prohibits discrimination 
on the basis of race, color, national origin, sex (including gender 
identity and sexual orientation), disability, age, or reprisal or 
retaliation for prior civil rights activity. The proposed change to 
Sec.  247.37(a) would align the regulations with the nondiscrimination 
statement if it changes in the future.
b. USDA Foods in Disasters and Situations of Distress
    Revisions to USDA Foods disaster response regulations (7 CFR 250.69 
and 250.70) focus on clarifying the requirements for the use of USDA 
Foods in disasters and situations of distress. A disaster refers to a 
Presidentially declared disaster or emergency, as defined in Section 
102 of the Robert T. Stafford Disaster Relief and Emergency Assistance 
Act (42 U.S.C. 5179-5180). Situations of distress differ from disasters 
in that situations of distress are natural catastrophes or other events 
that do not meet the definition of a

[[Page 54911]]

Presidentially declared disaster or emergency, but that, in the 
determination of the State distributing agency or of FNS, as 
applicable, warrant the use of USDA Foods to assist survivors of such 
catastrophe or other event. Examples of situations of distress may 
include hurricanes, floods, snowstorms, or explosions. USDA Foods were 
used widely for disaster response during the first year of the COVID-19 
pandemic. FNS is applying lessons learned from the pandemic to 
streamline these provisions.
i. Technical Updates to 250.69 and 250.70
    Proposed technical updates to parts 250.69 and 250.70 include 
replacing the outdated terms ``commodities,'' ``food commodities,'' 
``donated commodities,'' and ``donated foods,'' with ``USDA Foods'' to 
further align with the definition of ``USDA Foods'' in 7 CFR 250. The 
term commodities is no longer commonly used and has been replaced by 
``USDA Foods.'' Proposed technical updates would include reorganization 
for clarity as well.
ii. Removal of Prohibition on Simultaneous Provision of USDA [Donated] 
Foods and D-SNAP During a Disaster (Sec.  250.69(c)(2))
    The Department proposes removing language at Sec.  250.69(c)(2) 
which prohibits the simultaneous provision of USDA Foods and Disaster 
Supplemental Nutrition Assistance Program (D-SNAP) benefits during a 
disaster. Receipt of USDA Foods for home consumption and D-SNAP 
benefits at the same time is not prevented by The Robert T. Stafford 
Disaster Relief and Emergency Assistance Act (42 U.S.C. 5180). 
Distribution of USDA Foods during a disaster does not supplant or 
duplicate the benefit to the household which D-SNAP provides, as D-SNAP 
is a temporary food assistance benefit provided to households to 
purchase foods, as opposed to a food package benefit provided for home 
consumption. Distribution of USDA Foods during a disaster is intended 
to operate in the immediate aftermath of a disaster, when commercial 
food distribution channels are disrupted, stores are closed due to 
power outages, or roads are inaccessible. In general, D-SNAP benefits 
would not be able to be readily utilized until the retail grocery 
infrastructure was fully functional. State distributing agencies 
responding to disasters must work quickly to provide food assistance to 
households in need which may not have access to personal documents or a 
complete understanding of available food assistance resources. Removing 
the requirement that distributing agencies confirm whether a household 
has received D-SNAP benefits reduces the amount of information 
collected and verified for each applicant household, which may allow 
for expedited food provision during times of high need.
iii. Clarification of Requirements for Distribution of USDA Foods 
During a Disaster (Sec.  250.69)
    As State agencies operated disaster household distributions during 
the COVID-19 pandemic, it became apparent to the Department that many 
State agencies had difficulty understanding which provisions of Sec.  
250.69 apply to congregate meals and which apply to distribution to 
households. The current organization of Sec.  250.69(c) provides 
information that State distributing agencies must consider when 
determining which disaster organizations may serve either congregate 
meals or USDA Foods for household consumption. In some instances, State 
distributing agencies approved disaster organizations to provide USDA 
Foods for home consumption without ensuring that those disaster 
organizations had provided the additional information beyond what was 
required for organizations serving congregate meals, as required by 
Sec.  250.69(c)(2). In order to clarify which requirements apply to 
approval of disaster organizations serving congregate meals and which 
requirements apply to disaster organizations providing USDA Foods for 
household consumption, proposed revisions to the rule would reorder 
provisions so that all congregate meal language, including language 
from Sec.  250.69(c) and the entirety of Sec.  250.69(e), would be 
consolidated into a single provision at proposed Sec.  250.69(a) to 
clarify the use of USDA Foods in congregate meals. Similarly, all 
language relevant to distribution to households, including language 
from Sec.  250.69(c) and the entirety of Sec.  250.69(d), is proposed 
to be consolidated into a single provision at proposed Sec.  250.69(b) 
to clarify the use of USDA Foods for distribution to households. 
Section 250.69(f) Reporting and recordkeeping requirements, Sec.  
250.69(g) Replacement of donated foods, and Sec.  250.69(h) 
Reimbursement of transportation costs, which apply to both methods of 
distribution, are proposed to remain separate. The Department proposes 
to redesignate these sections to Sec.  250.69(d) Reporting and 
recordkeeping requirements, Sec.  250.69(e) Replacement of donated 
foods, and Sec.  250.69(f) Reimbursement of transportation costs, 
respectively.
iv. Limitation on Impacts to Other Programs (Sec.  250.69(c) and Sec.  
250.70(c))
    The Department proposes a new paragraph in 250.69(c) and 250.70(c) 
that would ensure that the use of USDA Foods for disaster response 
activities does not have an ongoing negative impact on the operation of 
other programs. USDA Foods for disaster response activities are 
typically drawn from local USDA Foods inventories that support 
permanent programs such as TEFAP. The prolonged nature of the COVID-19 
pandemic has been atypical when compared to previous Presidentially 
declared disasters or emergencies that lasted weeks or months rather 
than years. This provision would ensure that State agencies consider 
the operation of other USDA Foods programs when making decisions about 
using USDA Foods for disaster response activities.
v. Updated Reporting Requirements for Distribution of USDA Foods to 
Households During a Disaster (Sec.  250.69(d))
    The Department proposes introducing a new weekly State distributing 
agency reporting requirement for disaster household distributions at 
the newly proposed Sec.  250.69(d). During the COVID-19 pandemic, State 
distributing agencies significantly increased distribution of USDA 
Foods for household consumption to meet the increased need for food 
assistance and to comply with social distancing requirements. State 
distributing agencies must submit FNS Form FNS-292A, Report of 
Commodity Distribution for Disaster Relief, to FNS 45 days after the 
termination of disaster assistance to report the types and amounts of 
USDA Foods from distributing or recipient agency storage facilities 
used in disaster assistance. The prolonged nature of the COVID-19 
pandemic and the quantity of USDA Foods distributed illustrated that 
restricting reporting of USDA Foods distributed until after the end of 
the disaster assistance period presents a challenge for the tracking of 
USDA Foods inventories available nationally and within States, and USDA 
and State distributing agencies' ability to source and distribute foods 
to meet the needs of the public. To improve USDA's ability to mobilize 
foods to areas affected by disasters, the Department proposes requiring 
a new weekly report which State distributing agencies must complete if 
disaster household distribution persists for longer than 14 calendar 
days. Weekly tracking of USDA Foods served via disaster household 
distribution, beginning 14 days after the

[[Page 54912]]

start of distribution, would improve USDA's and State distributing 
agencies' understanding of the quantity and types of USDA Foods 
available for emergency response. This would also facilitate USDA's 
efforts to replace USDA Foods used in disaster response to prioritize 
nutrition security for participants in all programs serving USDA Foods. 
Furthermore, the proposed weekly reporting would require State 
distributing agencies to report the total number of individuals 
receiving assistance through disaster household distributions, which 
would provide USDA with an improved understanding of how many affected 
individuals are receiving assistance.
vi. Removal of the Prohibition on the Simultaneous Provision of USDA 
[Donated] Foods and D-SNAP During Situations of Distress (Sec.  
250.70(d))
    The Department proposes removing language at Sec.  250.70(d) which 
prohibits simultaneous provision of USDA Foods and Disaster 
Supplemental Nutrition Assistance Program (D-SNAP) benefits 
simultaneously during situations of distress. Distribution of USDA 
Foods during a situation of distress does not supplant or duplicate the 
benefit to the household which D-SNAP provides, as D-SNAP is a 
temporary food assistance benefit provided to households to purchase 
foods, as opposed to a food package benefit provided for consumption. 
As with distribution of USDA Foods during a disaster, distribution of 
USDA Foods during a situation of distress is intended to operate in the 
immediate aftermath of a disaster. State distributing agencies 
responding to disasters must work quickly to provide food assistance in 
conditions which may vary from typical operating conditions, and to 
households which may not have access to documents and which may be 
unfamiliar with food assistance resources. Removing the requirement 
that State distributing agencies confirm whether a household has 
received D-SNAP benefits reduces the amount of information collected 
and verified for each applicant household, allowing for expedited 
provision of foods during times of high need.
vii. Clarification of Requirements for Distribution of USDA Foods 
During Situations of Distress (Sec.  250.70)
    Proposed revisions to reorder Sec.  250.70 for clarity parallel 
revisions to Sec.  250.69 above. Proposed revisions would reorder 
provisions so that all congregate meal language, including language 
from Sec.  250.70(c) and the entirety of Sec.  250.70(e), are 
consolidated into a single provision at proposed Sec.  250.70(a) to 
clarify the use of USDA Foods in congregate meals. Similarly, all 
language relevant to distribution to households, including language 
from Sec.  250.70(c) and the entirety of Sec.  250.70(d), are proposed 
to be consolidated into a single provision at proposed Sec.  250.70(b) 
to clarify the use of USDA Foods for distribution to households. Sec.  
250.70(f) Reporting and recordkeeping requirements, Sec.  250.70(g) 
Replacement of donated foods, and Sec.  250.70(h) Reimbursement of 
transportation costs, which apply to both methods of distribution, are 
proposed to remain separate. The Department proposes to redesignate 
these sections to Sec.  250.70(d) Reporting and recordkeeping 
requirements, Sec.  250.70(e) Replacement of donated foods, and Sec.  
250.70(f) Reimbursement of transportation costs, respectively.
c. The Emergency Food Assistance Program (TEFAP)
    The Department proposes revisions to TEFAP regulations (7 CFR 251) 
which would focus on improving access to the program by simplifying 
requirements for program operators and enabling FNS to obtain better 
data on the reach of current program operations. Among the changes, the 
Department proposes eliminating barriers to program access by 
prohibiting State agencies from collecting an address as part of 
determining program eligibility and requiring State agencies to develop 
processes for eligible households to meet residency requirements at 
Sec.  251.5(b). The Department also proposes requiring States to 
publicly post statewide eligibility requirements to make information 
about the program more easily accessible to the public at proposed 
Sec.  251.4. Additionally, the proposed rule would update Farm to Food 
Bank Project requirements to simplify and make technical updates to 
administrative requirements for State agencies, in particular Farm to 
Food Bank Project reporting requirements, which have become points of 
confusion for program stakeholders.
i. Technical Updates to the Entire Part 251
    Proposed technical updates to part 251 include replacing instances 
of the outdated terms ``commodities,'' ``food commodities,'' ``TEFAP 
commodities,'' ``TEFAP foods,'' ``donated foods,'' and ``donated 
commodities'' to ``USDA Foods'' to further align the program with the 
definition of ``USDA Foods'' in 7 CFR 250. The term commodities is no 
longer commonly used and has been replaced by ``USDA Foods.'' 
Additional technical corrections are noted, as applicable, in section 
discussions below.
ii. Technical Clarification to the Definition of a Food Bank (Sec.  
251.3)
    The Department proposes removing a description of food provided by 
food banks in Sec.  251.3(f), deleting ``or edible commodities, or the 
products of food or edible commodities'' from the definition of food 
bank, as this description caused confusion about the types of foods to 
which regulations apply.
iii. Requirement for the Public Posting of Availability of USDA Foods 
Through TEFAP and Encouraging Distribution of USDA Foods in Tribal 
Areas (Sec.  251.4)
    To improve public access to TEFAP, the Department proposes 
clarifying requirements for standards of communication about TEFAP 
eligible recipient agencies in the new proposed section Sec.  251.4(l) 
and strengthening program regulations at Sec.  251.4(k) to encourage 
distribution of USDA Foods in Tribal areas.
    1. Eligible recipient agencies are organizations that distribute 
USDA Foods through TEFAP. The Department proposes requiring TEFAP State 
agencies to post information about eligible recipient agencies and 
TEFAP statewide eligibility criteria to publicly available websites to 
help the public understand where they may receive USDA Foods through 
TEFAP. This requirement would be codified in the proposed new section 
251.4(l). Eligible recipient agency information that must be publicly 
posted includes the name, address, and a contact telephone number for 
all eligible recipient agencies which distribute USDA Foods to other 
eligible recipient agencies, to eligible households for home 
consumption, or in prepared meals. The Department proposes requiring 
State agencies to update this information annually. State agencies are 
encouraged but not required to post more frequent updates as they are 
needed and include additional information, such as operating hours, the 
areas served by the eligible recipient agency, links to eligible 
recipient agency websites, and distribution site addresses. Requiring 
State agencies to post complete eligible recipient agency information 
on publicly available websites would help eligible households 
understand where they may receive benefits and which eligible recipient 
agencies they may contact for additional program information. This 
proposed requirement would allow FNS to better understand the number 
and location of eligible recipient agency sites, which would, in

[[Page 54913]]

turn, improve understanding of where TEFAP is available nationally, and 
where program coverage may need to be improved.
    2. In addition, the Department proposes updating Sec.  251.4(k) to 
encourage State agencies and eligible recipient agencies to implement 
or expand distributions of USDA Foods in Tribal areas, in addition to 
the rural areas already listed. During the COVID-19 pandemic, TEFAP 
eligible recipient agencies across the country stepped up to meet a 
substantial increase in need for emergency food assistance that, in 
some areas, has not yet subsided. The Department applauds our TEFAP 
partners for these continued efforts, while also recognizing that the 
pandemic has exposed some inequities withing our nation's broader 
emergency food network--especially in Tribal communities. In FY 2022 
and FY 2023, USDA made $100 million in TEFAP Reach and Resiliency grant 
funding available to all TEFAP State agencies to carry out projects to 
expand the reach of TEFAP into remote, rural, Tribal, and/or low-income 
areas. These funds are being used, in part, to expand TEFAP 
partnerships in Tribal areas and to strengthen the emergency food 
assistance network in Indian country. The Department proposes to 
further encourage TEFAP distributions and activities in Tribal areas 
through this proposed regulatory change, to ensure that TEFAP's 
collective reach spreads to all eligible individuals in need.
iv. State Agency Options for TEFAP Eligibility Criteria, Documentation, 
and Public Communication (Sec.  251.5)
    The Department proposes revisions to TEFAP regulations to increase 
alignment of income eligibility criteria nationwide, ensure access for 
vulnerable individuals, and ensure that statewide eligibility criteria 
are posted in a manner accessible to the public.
1. TEFAP Maximum Income Eligibility Range and State Agency Option for 
Alternative Income Eligibility Thresholds (Sec.  251.5(b)(2))
    Per section 202A(b)(4)(A) of the Emergency Food Assistance Act of 
1983 (Pub. L. 98-92 as amended), TEFAP State agencies must ensure that 
standards of eligibility require participating households to be 
comprised of ``needy persons.'' Current regulations at Sec.  
251.5(b)(2) require State agencies to develop statewide income-based 
eligibility standards, but do not include a suggested income range that 
States should use for developing those requirements. Proposed revisions 
to income-based standards would include a maximum income eligibility 
threshold that is at or between 185 percent to 250 percent of the U.S. 
Federal Poverty Guidelines published annually by the U.S. Department of 
Health and Human Services (HHS). For example, a TEFAP State agency may 
set its maximum income eligibility criterion at 185 percent of the U.S. 
Federal Poverty Income Guidelines published annually by HHS. Another 
TEFAP State agency may set its maximum at 200 percent of the Federal 
Poverty Income Guidelines, while another TEFAP State agency may set its 
maximum at 250 percent. Consistent with current program requirements at 
Sec.  251.5(b), such standards set by a TEFAP State agency must be 
applied uniformly statewide.
    Overall, this proposed revision would reduce the variance in income 
eligibility criteria across States. As of September 2022, income 
eligibility ranged from 125 percent to 400 percent of U.S. Federal 
Poverty Income Guidelines, nationally. Establishing a national, 
allowable range for income eligibility would allow the Department to 
protect TEFAP access for those individuals most in need while 
simultaneously providing State agencies flexibility to develop income-
based eligibility criteria which account for variance in cost of living 
across States.
    Under this proposal, the Department would permit TEFAP State 
agencies to develop maximum income-based eligibility standards above 
this range if they provide rationale for their proposed threshold, 
subject to FNS approval.
2. Methods for Verifying Residency (Sec.  251.5(b)(3))
    Per Sec.  202A(b)(4)(B) of the Emergency Food Assistance Act of 
1983 (Pub. L. 98-92 as amended) and Sec.  251.5(b)(3), TEFAP State 
agencies must set forth standards of eligibility for recipients of USDA 
Foods which require participating individuals or household members to 
reside in the geographic location served by the State agency at the 
time of applying for assistance. Proposed revisions to this paragraph 
would require State agencies to develop a process for requesting 
residency information to determine eligibility that does not require an 
address or identification, such as self-declaration of residency by the 
applicant. Furthermore, this proposed revision would prohibit State 
agencies from requiring households to provide an address or 
identification to confirm residency as part of their statewide 
eligibility criteria. Related to this proposal, the Department proposes 
amending regulations to remove the federal address collection 
requirement in current Sec.  251.10(a)(3) and proposes establishing 
requirements for protecting information obtained from applicants and 
participants to establish eligibility.
    This proposed change would ensure that TEFAP agencies would retain 
the ability to develop statewide eligibility criteria which fit their 
needs, while supporting program access for vulnerable individuals and 
households. See preamble section (vii)(1) Removal of Federal Address 
Collection Requirements and Establishing Confidentiality Protections 
for Applicant and Participant Household Information (Sec.  
251.10(a)(4), Sec.  251.10(c)) for further details.
3. Public Posting of Statewide TEFAP Eligibility Criteria (Sec.  
251.5(b))
    Current regulations do not direct State agencies on how they must 
inform the public of TEFAP statewide eligibility criteria. Proposed 
revisions to Sec.  251.5(b) would require State agencies to post to 
publicly available websites statewide eligibility criteria, including 
requirements for demonstrating income and residency. Clarifying 
standards of communication for statewide eligibility criteria would 
ensure that eligible applicants are more easily able to understand how 
they may receive TEFAP, as well as requirements for demonstrating 
eligibility.
v. Updated Reference for Farm to Food Bank Projects (Sec.  251.6)
    Proposed revisions to this section would update the paragraphs 
cited for information that must be included in TEFAP State Plans for 
Farm to Food Bank Projects. A new proposed provision would encompass 
all provisions related to Farm to Food Bank Projects at new Sec.  
251.13.
vi. Updated Reference for TEFAP Reporting Requirements (Sec.  251.9)
    Proposed revisions to this section would update the paragraph cited 
for the FNS-667, Report of TEFAP Administrative Costs. Provisions in 
Sec.  251.10 are proposed to be updated for clarity and improved 
readability, resulting in redesignation of several provisions. The 
proposed, revised paragraph at Sec.  251.9(e) references the newly 
redesignated paragraph Sec.  251.10(b)(1).
vii. Removal of Federal Address Collection Requirements, 
Redesignations, and Updated References for Miscellaneous Provisions 
(Sec.  251.10)
    The Department proposes removing federal address collection 
requirements for TEFAP participants who receive USDA Foods for home 
consumption at

[[Page 54914]]

proposed Sec.  251.10(a)(4), adding requirements for protecting 
information obtained from TEFAP applicants and participants at Sec.  
251.10(c), and redesignating sections of the entire Sec.  251.10 in 
order to improve clarity and readability.
1. Removal of Federal Address Collection Requirements and Establishing 
Confidentiality Protections for Applicant and Participant Household 
Information (Sec.  251.10(a)(4), Sec.  251.10(c))
    Current regulations at Sec.  251.10(a)(3) require distribution 
sites to collect the addresses of households receiving USDA Foods for 
home consumption and maintain the record of participant addresses per 
the retention policy described in Sec.  251.10(a)(4). The federal 
address collection requirement is administratively burdensome for 
program operators and does not serve a demonstrated program need. 
During the COVID-19 pandemic, increased demand at emergency feeding 
organizations resulted in long lines for families searching for food 
assistance. Removing the federal address collection requirement would 
simplify the administration of TEFAP for eligible recipient agencies. 
Removing the federal address collection requirement would also allow 
States to develop more streamlined methods for determining TEFAP 
applicant residency, which may help local program operators reduce wait 
time for food distribution. Additionally, FNS has received many 
questions about the necessity of collecting addresses from persons who 
have difficulty providing this information for reasons such as being 
unhoused. The Department proposes removing federal address collection 
requirements for TEFAP participants who receive USDA Foods for home 
consumption at proposed Sec.  251.10(a)(4).
    Current regulations do not include requirements for protecting the 
confidentiality of TEFAP applicants or participant household 
information. To ensure protection of information collected from 
households, and to align recordkeeping and retention requirements with 
those of other food assistance programs, proposed regulations would 
establish confidentiality requirements in the new Sec.  251.10(c). The 
proposed section would define the information which must be kept 
confidential and would explain limits on disclosure of information 
obtained from applicants or participants and the identity of persons 
making a complaint or allegation against persons participating in or 
administering the program.
2. Nondiscrimination Statement Update (Sec.  251.14(b))
    The Department proposes updating current Sec.  251.10(c) and 
redesignating as Sec.  251.14(b) to advise the public that TEFAP must 
be operated in accordance with the most up-to-date USDA 
nondiscrimination statement.
    The current USDA nondiscrimination statement applicable to TEFAP 
prohibits discrimination on the basis of race, color, national origin, 
sex (including gender identity and sexual orientation), disability, 
age, or reprisal or retaliation for prior civil rights activity. The 
proposed change to newly proposed Sec.  251.14(b) would align the 
regulations with the current applicable USDA nondiscrimination 
statement and any future changes to the nondiscrimination statement.
3. Eligible Recipient Agency and Household Distribution Participation 
Reporting (Sec.  251.10(b)(3) and Sec.  251.10(b)(4))
    The Department proposes updating 251.10(b) with two new provisions 
to improve understanding of program coverage and participation in 
TEFAP. The proposed provision would collect information on eligible 
recipient agencies and TEFAP participants.
    Proposed revisions would establish a requirement for the public 
posting of eligible recipient agency information in new paragraph 
251.4(l), described in (c)(iii) above, to improve public access to 
TEFAP. In proposed 251.10(b)(3), the Department proposes to require 
TEFAP State agencies report this information to FNS on an annual basis 
so that FNS may understand where TEFAP services are offered and the 
landscape of eligible recipient agencies participating in TEFAP 
nationally. The list provided to FNS would include eligible recipient 
agencies that have agreements with a State agency and eligible 
recipient agencies that have agreements with another eligible recipient 
agency. The list would also include eligible recipient agencies that 
distribute USDA Foods for home consumption and those that distribute 
USDA Foods in the form of prepared meals. This would allow FNS to 
better understand areas where there may be gaps in service, and work 
with States to eliminate these gaps.
    Per current 251.10(a)(3), each distribution site must collect and 
maintain on record the name of the household member receiving USDA 
Foods for home consumption, as well as the address of the household to 
the extent practicable, and the number of persons in the household. The 
Department proposes removing the collection of household addresses as 
described in (c)(iv)(1) above. To understand how many individuals 
participate in TEFAP through the distribution of USDA Foods for home 
consumption, the Department proposes to add a requirement in proposed 
251.10(b)(4) that State agencies report the total number of persons 
participating in TEFAP in this manner. State agencies would be required 
to report the total monthly number of individuals receiving USDA Foods 
through TEFAP for home consumption on a quarterly basis. The Department 
intends to align timing of this report with other required quarterly 
reporting, such as administrative funds usage, in order to minimize 
reporting burden for State agencies.
4. Technical Corrections for Miscellaneous Provision (Sec.  251.10(d) 
and (f))
    The Department proposes updating Sec.  251.10(d) to correct an 
error in a reference to reporting requirements. The current reference 
to reports of excessive inventory directs readers to Sec.  250.17(a), 
and this would be corrected to direct readers to Sec.  250.18 Reporting 
requirements.
    The Department proposes updating paragraph (f) references to 
reflect redesignations and newly created sections in the proposed rule, 
which are discussed below. The Department also proposes clarifying the 
requirements for limits on unrelated activities during the 
administration of TEFAP, and potential consequences for violation of 
these limits by more clearly stating existing requirements.
5. Redesignations for Miscellaneous Provisions (Sec.  251.10)
    The Department proposes breaking current Sec.  251.10 Miscellaneous 
into five distinct sections: Sec.  251.10 Reports and recordkeeping, 
Sec.  251.11 State monitoring system, Sec.  251.12 Limitation on 
unrelated activities, Sec.  251.13 Farm to Food Bank projects, and 
Sec.  251.14 Miscellaneous. These proposed revisions would 
significantly improve the readability of the regulation, with the 
ultimate intent of reducing confusion on the part of State agencies. 
Current Sec.  251.10 contains paragraphs (a) through (j) and includes 
topics ranging from reports and recordkeeping to Farm to Food Bank 
Projects. In this proposed rulemaking, all previous provisions would be 
retained, but several are proposed to move to new proposed paragraphs 
for clarity. The proposed revision establishes a new Sec.  251.10, 
Reports and recordkeeping, for all TEFAP reports and recordkeeping

[[Page 54915]]

information and is updated to include confidentiality requirements for 
information about TEFAP participant households, as explained above.
6. New Sections Created for Clarity (Sec.  251.11, Sec.  251.12, Sec.  
251.13, and Sec.  251.14)
    The new proposed Sec.  251.11 would include requirements for State 
agency monitoring systems, and the new proposed Sec.  251.12 would 
explain limitations on unrelated activities at TEFAP distributions. 
Farm to Food Bank Project regulations are proposed to be moved into a 
new, proposed Sec.  251.13 so that State agencies can easily locate all 
requirements for these projects. New proposed Sec.  251.14 would 
include miscellaneous provisions that are not closely related to other 
provisions, such as nondiscrimination and use of volunteer workers and 
non-USDA foods.
d. Food Distribution Program on Indian Reservations (FDPIR)
    Proposed revisions to FDPIR regulations (7 CFR 253) focus on 
establishing further parity between FDPIR eligibility requirements and 
the Supplemental Nutrition Assistance Program (SNAP) and ensuring 
program access. Among the proposed changes, the Department proposes 
clarifying the household concept for purposes of FDPIR eligibility for 
spouses living together and spouses living apart in separate 
households, removing the urban place requirement which limits the 
operation of FDPIR in approved near areas and/or service areas that 
have a population of 10,000 people or more, updating the shelter/
utility standard deduction to remove the Regional standard deduction 
and set forth a revised approach pursuant to Tribal leader and FDPIR 
program community feedback, and establishing a limited administrative 
waiver to be more consistent with SNAP waiver authorities.
i. Technical Updates to the Entire Part 253
    Proposed technical corrections throughout part 253 would replace 
instances of the outdated terms ``commodity'' and ``commodities'' with 
``USDA Foods'' and the outdated term ``Food Stamps'' with ``SNAP,'' the 
Supplemental Nutrition Assistance Program. These updates align part 253 
in accordance with other sections in this chapter. Additional technical 
corrections are noted, as applicable, in section discussions below.
ii. Removal of Urban Place Definition (Sec.  253.2 and Sec.  253.4)
    In Sec.  253.2 and Sec.  253.4, the Department proposes to remove 
the urban place regulatory references and the associated requirement 
that an FDPIR Indian Tribal Organization (ITO) or State agency must 
provide a justification to FNS to serve urban places off the 
reservation. Per Sec.  253.2, an urban place is defined as a city or 
town with a population of 10,000 or more. Currently, per FDPIR 
regulations at Sec.  253.4(d), any urban place outside of the 
reservation boundaries may not be served unless an ITO or State agency 
requests to serve the urban place with a justification.
    Tribal leaders and the National Association of Food Distribution 
Programs on Indian Reservations (NAFDPIR) Board have submitted multiple 
Resolutions to FNS to remove and/or adjust the definition of urban 
place to increase the population from 10,000. Resolutions have cited 
the nutritional needs of Tribal members, their preferences for FDPIR 
benefits over SNAP, access to FDPIR nutrition education which is more 
tailored to meet Tribal needs, and a desire to remain connected to 
Tribal services. The FDPIR community has expressed frustration with the 
administrative difficulties in applying for an ``urban place waiver,'' 
and with what is perceived to be an arbitrarily low population cap of 
10,000.
    The current restriction on the Program's operation in urban places 
is an outdated provision which unnecessarily limits the availability of 
FDPIR for Tribal members in urban areas. This proposed change would 
increase program access and reach, allowing the potential for more 
individuals in need to receive nutritious FDPIR food package benefits, 
and allows households to have the option to choose between FDPIR and 
SNAP within the month in any area where FDPIR is available. The 
proposed change would not remove the dual participation statutory 
prohibition for a household to participate in FDPIR and SNAP within the 
same month; however, a household may more easily have the flexibility 
to move between both programs from month to month as they see fit 
without the urban place requirements in place.
    Conforming revisions are proposed below to 7 CFR part 254, 
Administration of the Food Distribution Program for Indian Households 
in Oklahoma.
    Additionally, the Department proposes changing the term 
``contract'' in Sec.  253.4(b)(3) to ``delegate'' in order to improve 
the clarity of the section and to be consistent with language used in 7 
CFR 247, 250, and 251.
iii. Periodically Assessing the FDPIR Food Package (Sec.  253.3)
    In Sec.  253.3, the Department proposes adding a new requirement 
for FNS to periodically assess how USDA Foods provided in FDPIR compare 
to the Dietary Guidelines for Americans (DGAs) and the market baskets 
of the Thrifty Food Plan (TFP) and, to the extent practicable, adjust 
the FDPIR food package benefit as needed to ensure the FDPIR food 
package continues to be consistent with these assessments of basic 
dietary needs. The proposed provision would prohibit the FDPIR food 
package benefit from being reduced as a result of the analysis. 
Currently, FNS makes changes to the food package at the request of 
stakeholders through the FDPIR Food Package Review Work Group (the Work 
Group). The Work Group is critical to this process and helps make 
changes to the food package, including adding additional units (i.e., 
increasing volume) and increasing food variety within the food package. 
The proposed change to Sec.  253.3 will not limit the Work Group's 
ability to implement changes and improvements to the food package 
independent of these assessments. If an assessment results in potential 
proposed changes to the FDPIR food package benefit, the Work Group 
process will continue to be followed to consider such changes.
    For background, current FDPIR regulations do not include language 
regarding the method that is used to make changes to the benefit level 
of the food package. In 2002, at the request of stakeholders such as 
the National Association of Food Distribution Programs on Indian 
Reservations (NAFDPIR), FNS established the FDPIR Food Package Review 
Work Group (the Work Group). The goal of the Work

[[Page 54916]]

Group is to consider revisions to the food package to better meet the 
nutritional needs and food preferences of program participants. The 
types of changes that have been implemented by the Work Group include 
increasing choices in a particular food category, changing the size of 
products, and improving the quality and nutrient profile of USDA Foods 
provided by FDPIR. Each prospective change is considered in terms of 
its impact on the people being served, the nutrient profile, and the 
cost of the entire food package. Any adjustments made to the FDPIR Food 
Package as a result of this proposed change would be discussed with the 
Work Group. This proposed provision would help ensure that the FDPIR 
food package stays more consistent with changes made in SNAP.
    Additionally, the Department proposes updating the provisions at 7 
CFR 253.3(a)(2) to clarify in plain language that FDPIR households can 
receive FDPIR USDA Foods as well as other USDA Foods programs in the 
same month in accordance with the requirements of part 250 and with 
other federal regulations applicable to specific USDA Foods programs. 
FDPIR households can currently receive USDA Foods through FDPIR and 
other USDA Foods in the same month, but current language only includes 
the Commodity Supplemental Food Program (CSFP).
    The Department also proposes a technical correction that would 
remove the list of food groups in the FDPIR food package from 7 CFR 
253.3(d). This list is outdated and FNS publishes the current list of 
food groups in Exhibit O of the 501 Handbook.
iv. Nondiscrimination Statement Update (Sec.  253.5)
    The Department proposes updating Sec.  253.5(a)(2)(iv) to advise 
the public that FDPIR must be operated in accordance with the most up-
to-date USDA nondiscrimination statement. This currently includes 
prohibiting discrimination on the basis of race, color, national 
origin, sex (including gender identity and sexual orientation), 
religious creed, disability, age, political beliefs, or reprisal or 
retaliation for prior civil rights activity. The proposed change would 
align the regulations with the current applicable USDA 
nondiscrimination statement and any future changes to the 
nondiscrimination statement.
v. Updates to FDPIR Eligibility Provisions (Sec.  253.6)
    The Department proposes making several changes to FDPIR eligibility 
provisions at 7 CFR 253.6 to increase access to the program and to 
improve consistency between FDPIR and SNAP requirements.
1. Separate Household Status for Spouses Not Living Together (Sec.  
253.6(a)(1))
    The Department proposes removing the regulatory prohibition at 
current 7 CFR 253.6(a)(1) on granting separate household status to 
spouses living apart. Current regulations require that separate 
household status cannot be granted to spouses not living together. SNAP 
regulations at 7 CFR 273.1(b)(1) currently provide flexibility for 
spouses that are not living together to be considered separate 
households. The current prohibition in FDPIR presents a barrier to 
access for individuals who are legally married but not living in the 
same household. Individuals in this situation can prove they are living 
apart, but because they are legally married, regardless of their living 
situation, they cannot receive separate household status under current 
regulations. If one of the individuals is receiving FDPIR or SNAP 
benefits, then the other individual cannot receive FDPIR as a separate 
household. The proposed provision would establish parity between FDPIR 
and SNAP regarding the treatment of household composition for spouses.
2. Minor Children Living Apart From Parents (Sec.  253.6(a)(1))
    The Department also proposes further clarifying requirements for 
determining parental control of minor children for the purposes of 
determining the composition of the household and household eligibility. 
Current FDPIR regulations at 7 CFR 253.6(a)(1) include language that 
children under the age of 18 under the parental control of a member of 
the household cannot receive separate household status. More clarity is 
needed to account for situations involving minor children living apart 
from their parents, for example when a child is living with their 
grandparents.
    A new section at proposed 7 CFR 253.6(a)(4) would use the language 
found in SNAP regulations at 7 CFR 273.1(b)(1)(iii), which clarifies 
that a child is considered under parental control for purposes of this 
provision if they are financially or otherwise dependent on a member of 
that household, for example, a grandparent. This proposed change would 
also improve consistency between FDPIR and SNAP requirements to ensure 
that both programs only certify a child if the adult household member 
has ``parental'' control over the child.
3. Removal of California SSI Cash-Out Reference (Sec.  253.6(a)(2)(ii))
    The Department additionally proposes removing reference to 
Supplemental Security Income (SSI) cash-out at 7 CFR 253.6(a)(2)(ii), 
as this provision is no longer applicable. The California Assembly Bill 
(AB) 1811 reversed the cash-out policy, resulting in SSI recipients in 
California becoming eligible for SNAP or FDPIR benefits provided all 
other eligibility criteria are met.\6\ The bill was enrolled and 
enacted in June 2018. This change was effective on June 1, 2019.
---------------------------------------------------------------------------

    \6\ California State Legislature, Assembly Bill No. 1811 Human 
Services Omnibus (2017-2018). Accessed 23 January, 2023. Available 
at internet site: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB1811.
---------------------------------------------------------------------------

4. Revisions to Shelter/Utility Deductions (Sec.  253.6(e)(5))
    Currently, FDPIR's base income eligibility thresholds are set using 
100 percent of the U.S. Federal Poverty Guidelines published by HHS and 
increased by the SNAP standard deduction by household size. The 
thresholds are updated annually by October 1. FDPIR regulations at 7 
CFR 253.6(e) provide for income deductions, in recognition of expenses 
which impact the amount of household income available for food 
purchases. These income deductions may assist applicants in meeting 
income standards for the program. Under current FDPIR regulations at 7 
CFR 253.6(e), income deductions include an earned income deduction, 
dependent care deduction, child support deduction, medical expense 
deduction, and shelter/utility standard deduction. FDPIR fiscal year 
2023 income eligibility standards and a full list of deductions are 
provided on the FNS website at https://www.fns.usda.gov/fdpir/net-monthly-income-standards.
    The Department proposes revising 7 CFR 253.6(e)(5) to amend the 
process FNS uses to update the shelter/utility standard deduction each 
year. The current method was finalized in the 2013 Final Rule: Food 
Distribution Program on Indian Reservations: Income Deductions and 
Resource Eligibility.\7\ Under current regulations, households that 
incur at least one monthly shelter and/or utility expense permitted 
under SNAP at 7 CFR

[[Page 54917]]

273.9(d)(6)(ii) may receive the deduction. Each year, FNS establishes 
the regional shelter/utility standard deduction amounts by taking the 
average SNAP shelter deduction in each FDPIR State in the region 
weighted by FDPIR participation in the State. As the SNAP data used 
lags by two years, the weighted values are indexed by inflation to the 
current year and then rounded to the nearest $50 increment. For fiscal 
year 2023, the FDPIR Regional shelter/utility deductions are as 
follows:
---------------------------------------------------------------------------

    \7\ USDA Food and Nutrition Service, Final Rule: The Food 
Distribution Program on Indian Reservations: Income Deductions and 
Resource Eligibility (78 FR 52827), Accessed 23 January 2023. 
Available at internet site: https://www.federalregister.gov/documents/2013/08/27/2013-20844/food-distribution-program-on-indian-reservations-income-deductions-and-resource-eligibility.

  Table 1.1--FY 2023 FDPIR Standard Shelter/Utility Expense Deductions
------------------------------------------------------------------------
                                                             Shelter/
             Region               States currently with       utility
                                      FDPIR programs         deduction
------------------------------------------------------------------------
Northeast/Midwest..............  Maine, Michigan,                   $500
                                  Minnesota, New York,
                                  Wisconsin.
Southeast/Southwest............  Arizona, Mississippi,               400
                                  New Mexico, North
                                  Carolina, Oklahoma,
                                  Texas, Utah.
Mountain Plains................  Colorado, Kansas,                   550
                                  Montana, Nebraska,
                                  North Dakota, South
                                  Dakota, Wyoming.
West...........................  Alaska, California,                 450
                                  Idaho, Nevada, Oregon,
                                  Washington.
------------------------------------------------------------------------
* If the geographic boundaries of an Indian reservation extend to more
  than one region per the identified regional groupings above, then a
  qualifying household has the option to receive the appropriate shelter/
  utility expense deduction amount for the State in which the household
  resides or the State agency's central administrative office is
  located.

    Tribal leaders and NAFDPIR have expressed concern that the current 
approach does not reflect current conditions and does not address the 
variances in Indian Country. In addition, it has been expressed that in 
times of historically high inflation and household costs, there may be 
households that are slightly over the FDPIR income standards but due to 
high costs of shelter and utility expenses, a household may be food 
insecure.
    The Department remains committed to working with Tribal leaders and 
NAFDPIR to continue to discuss FDPIR income eligibility and program 
access. The Department proposes updating the FDPIR shelter/utility 
standard deduction to allow FDPIR households to use actual expenses up 
to 50 percent of net income, and to increase the standard deduction 
option to the level of the SNAP maximum shelter deduction instead of 
the current Regional standard deduction.
    Under the newly proposed standard deduction method, when the SNAP 
excess shelter deduction is updated annually for the next fiscal year 
(FY), per 7 CFR 273.9(d)(6)(ii), the maximum monthly excess shelter 
deduction limit established for the area would be used as the FDPIR 
shelter/utility standard deduction amount. For example, in FY 2023, the 
SNAP maximum shelter deduction amount for the 48 contiguous States and 
the District of Columbia is $624 and Alaska is $996. Under this 
proposal, these amounts would be used for the standard deduction for 
households that elect to use this amount; or the household could choose 
to provide actual expenses up to 50 percent of net income. The shelter/
utility standard deduction amounts would be updated annually by October 
1. See the preamble discussion applicable to verification procedures 
(Sec.  253.7), where the Department proposes verification requirements 
for applicants and participants seeking to provide actual shelter and 
utility expenses to receive a shelter/utility deduction of up to 50 
percent of net income.
    In addition to responding to concerns raised by Tribal leaders at 
recent Consultations, as well as NAFDPIR and FDPIR ITOs and State 
agencies, the Department believes the proposed amendment to the 
shelter/utility standard deduction would further promote simplicity and 
efficiency in program administration, relieving burden on FDPIR 
administering agencies.
    Additionally, the Department proposes a change to Sec.  253.6(e)(1) 
to indicate that under the earned income deduction, twenty percent 
should be deducted from ``gross earned income,'' instead of the 
previous ``earned income,'' which would increase clarity in this 
section.
5. Request for Public Comments: FDPIR Income Standards (Sec.  253.6(d))
    As provided in the preamble discussion at Sec.  253.6(e)(5), the 
FDPIR base income eligibility thresholds are set using 100 percent of 
the U.S. Federal Poverty Guidelines published by the U.S. Department of 
Health and Human Services (HHS) and increased by the SNAP standard 
deduction by household size. The Department is soliciting comments 
regarding whether further changes should be made to FDPIR income 
standards to increase program access and parity with SNAP. The 
Department is seeking feedback from FDPIR ITOs and State agencies to 
inform potential future proposals on alternative eligibility thresholds 
for FDPIR, including feedback on the following questions:
    1. Are there data sources in addition to HHS data that the 
Department should consider when determining income eligibility 
standards for FDPIR?
2. Should the Department consider use of a gross income eligibility 
requirement for FDPIR e.g., 185 percent of the U.S. Federal Poverty 
Guidelines published annually by HHS, without application of any income 
deductions?
    USDA FNS appreciates and values your thoughtful and responsive 
replies to these questions. Your feedback is essential to helping FNS 
ensure the administration of FDPIR is as effective and efficient as 
possible. Moving forward, FNS will continue to prioritize Tribal 
consultation and feedback from FDPIR partners on a wide range of issues 
related to FDPIR, as it considers ways to improve an already successful 
program.
vi. Verification Procedures (Sec.  253.7)
    The Department proposes a technical update to the verification 
requirements for the shelter/utility standard deduction to provide 
verification for all expenses if actuals are used. Furthermore, the 
Department proposes updating the threshold for which an ITO or State 
agency must verify a change in income from $50 to $100 at the time of 
recertification. The 2013 Final Rule, The Food Distribution Program on 
Indian Reservations: Income Deductions and Resource Eligibility, 
included a provision that households must report an increase in gross 
monthly income of more than $100 within 10 calendar days of when the 
change becomes known to the household.\8\ As an oversight, the update 
was not applied to the recertification verification at 253.7(a)(6)(v). 
This proposed update

[[Page 54918]]

would align the required household income reporting changes that 
require notification from the household.
---------------------------------------------------------------------------

    \8\ USDA Food and Nutrition Service, Final Rule: The Food 
Distribution Program on Indian Reservations: Income Deductions and 
Resource Eligibility (78 FR 52827), Accessed 23 January 2023. 
Available at internet site: https://www.federalregister.gov/documents/2013/08/27/2013-20844/food-distribution-program-on-indian-reservations-income-deductions-and-resource-eligibility.
---------------------------------------------------------------------------

vii. USDA Foods Inventory Management (Sec.  253.10)
    The proposed technical update would make this section consistent 
with the 2016 Final Rule, Requirements for the Distribution and Control 
of Donated Foods--The Emergency Food Assistance Program: Implementation 
of the Agricultural Act of 2014.\9\ The Department proposes removing 
current FDPIR regulatory requirements at 7 CFR 253.10(c)(1)-(6) and 
replacing them with a reference to follow storage and inventory 
management regulations listed at 7 CFR 250.12 and 250.14. This proposal 
would ensure that FDPIR regulations remain consistent with 7 CFR 250. 
Additionally, the Department proposes moving 7 CFR 253.10(c)(7) through 
(17) to 253.10(d), as these citations are applicable to distribution 
procedures.
---------------------------------------------------------------------------

    \9\ USDA Food and Nutrition Service, Final Rule: Requirements 
for the Distribution and Control of Donated Foods--The Emergency 
Food Assistance Program: Implementation of the Agricultural Act of 
2014 (81 FR 23085). Accessed 23 January 2023. Available at internet 
site: https://www.federalregister.gov/documents/2016/04/19/2016-08639/requirements-for-the-distribution-and-control-of-donated-foods-the-emergency-food-assistance-program.
---------------------------------------------------------------------------

viii. Soliciting Tribal Stakeholder Feedback on the FDPIR 
Administrative Funding Methodology
    While not proposing changes in this rulemaking, the Department is 
soliciting comments on the method that is used to allocate 
administrative funding to FDPIR administering agencies, which include 
ITOs and State agencies that have an agreement with FNS to administer 
FDPIR. This solicitation of comments is intended to gather FDPIR 
administering agency feedback on the existing administrative funding 
methodology, including the budget negotiation process, to frame any 
necessary future discussions and changes to the methodology. If FNS 
determines that comments received are sufficient to justify a change to 
the administrative funding methodology, FNS will use feedback received 
to inform next steps.
    Currently, administrative funds are allocated to FNS Regional 
Offices based on a funding formula established in program regulations 
at 7 CFR 253.11(a). To the extent practicable, administrative funds are 
allocated to FNS Regional Offices in the following manner: (1) sixty 
five percent of all administrative funds available nationally will be 
allocated to each FNS Regional Office in proportion to its share of the 
total number of participants nationally, averaged over the three 
previous fiscal years; and (2) thirty-five percent of all 
administrative funds available nationally will be allocated to each FNS 
Regional Office in proportion to its share of the total current number 
of State agencies administering the program nationally. FDPIR 
administrative funds are then allocated to administering agencies 
through a budget process conducted by FNS Regional Offices. ITOs and 
State agencies are entitled to FDPIR administrative funding to 
administer the program. Through this process, ITOs and State agencies 
submit a proposed budget reflecting planned administrative costs to the 
appropriate FNS Regional Office for approval. To the extent that 
funding levels permit, the FNS Regional Office allocates to each State 
agency administrative funds necessary to cover no less than 80 percent 
of approved administrative costs, with the remainder matched by the 
ITO/State agency (20 percent) unless the State agency/ITO provides 
sufficient justification to match less.
    The current funding methodology was established based on feedback 
from a FDPIR Funding Methodology Workgroup, consisting of FNS staff and 
representatives from FDPIR administering agencies. The Workgroup 
developed proposals for a new administrative funding allocation 
methodology for FDPIR, and FNS formally consulted with Tribal leaders 
on the funding methodology before implementation. The current funding 
methodology was implemented in FY 2008 on an interim basis and codified 
in FDPIR regulations in 2012.
    Notably, there have been significant changes in FDPIR 
administrative funding levels and statutory requirements over the last 
few years. Until FY 2019, FDPIR administrative funds were only 
available to FDPIR ITOs and State agencies for obligation for one 
fiscal year. Importantly, Section 4003 of the Agriculture Improvement 
Act of 2018 (Pub. L. 115-134, the 2018 Farm Bill) required all FDPIR 
administrative grants to remain available for obligation at the ITO and 
State agency level for a period of two fiscal years. This statutory 
change improved program administration by allowing administering 
agencies to plan operations and use funds more flexibly and effectively 
from one fiscal year to the next. This statutory change allowing for 
carryover of unspent administrative grants at the FDPIR ITO and State 
agency levels has coincided with an increase in the amount of FDPIR 
administrative funding available nationally in recent years. In FY 
2018, Congress appropriated $48.0 million for FDPIR ITO and State 
agency administrative expenses. By FY 2022, appropriated funding for 
ITO and State agency administrative grants had increased to $62.669 
million, of which $4 million was dedicated to FDPIR nutrition education 
activities (an increase from the previous annual appropriation of 
$250,000 for nutrition education). In addition to the annual, national 
administrative funding increases, in 2020, $62 million was made 
available to FDPIR administering agencies under the Coronavirus Aid, 
Relief and Economic Security Act (Pub. L. 116-396, CARES Act) for FDPIR 
facilities improvements, equipment upgrades, and supplemental 
administrative funding.
    Based on these key changes in the program since the current funding 
methodology was established, FNS is seeking comments on whether the 
current process adequately meets the needs of the program. FNS 
specifically requests comments from FDPIR administering agencies on the 
following questions:
    1. With the advent of two-year FDPIR administrative funding, and 
given the increase in funding in recent years, does the current 
methodology provide your organization with adequate funding to meet its 
administrative needs?
    2. Are there aspects of the current funding methodology that could 
be improved, and if so, how?
    3. Specifically, please provide comment on the effectiveness of the 
current regional allocation and budget negotiation process and if 
modifications or another model could better serve Indian Tribal 
Organization needs.
    USDA FNS appreciates and values your thoughtful and responsive 
replies to all questions. Your feedback is essential to helping FNS 
ensure the administration of FDPIR is as equitable as possible. Moving 
forward, USDA FNS will continue to prioritize Tribal consultation and 
feedback from FDPIR partners on a wide range of issues related to 
FDPIR, as it considers ways to improve an already successful program. 
USDA welcomes your feedback on how FNS could seek further input from 
the FDPIR community on this important topic outside of this rulemaking.
ix. Establishment of Administrative Waiver Authority in FDPIR (Sec.  
253.12)
    Tribal leaders have expressed concern regarding the lack of parity 
between FDPIR and SNAP with respect to FNS' ability to waive or modify 
specific regulatory requirements in certain

[[Page 54919]]

situations. The Department proposes adding an amendment to current 
FDPIR regulations that would allow FNS to waive or modify specific 
administrative requirements contained in this part, under similar 
processes, for similar amounts of time, and in similar situations as 
outlined in SNAP regulations at 7 CFR 272.3(c). This proposed provision 
is intended to mirror SNAP waiver requirements but would be separate 
and distinct from SNAP waiver authority. Under this proposed provision, 
FDPIR ITOs and State agencies would be able to request waivers of 
specific regulatory requirements. This process would require State 
agencies and ITOs to provide compelling justification for each waiver 
request submitted. FNS envisions the final regulations would outline, 
among other potential stipulations, that waiver approvals would only be 
issued when (1) the specific regulatory provision cannot be implemented 
due to extraordinary temporary situations, (2) FNS determines that the 
waiver would result in a more effective and efficient administration of 
the program, or (3) unique geographic conditions within the geographic 
area served by the administering agency preclude effective 
implementation of the specific regulatory provision and require an 
alternative procedure. FNS seeks comment on these specific stipulations 
and other considerations. If the situation that necessitates the waiver 
is widely applicable to all FDPIR ITOs and State agencies, FNS could 
choose to issue nationwide waivers of specific administrative 
requirements if determined to be necessary. Waivers would not be issued 
in situations where the waiver would be inconsistent with provisions of 
the Food and Nutrition Act of 2008, as amended (Pub. L. 95-113).
e. Administration of the Food Distribution Program for Indian 
Households in Oklahoma (7 CFR 254)
    Part 254 addresses circumstances unique to distributing FDPIR to 
households residing in FNS services areas in Oklahoma. The Department 
is proposing to make conforming changes to part 254 to align with 
updates made to part 253. The proposed technical updates to part 254 
would include replacing the outdated term ``commodities'' with ``USDA 
Foods'' to further align the program with the definition of ``USDA 
Foods'' in 7 CFR 250. The term commodities is no longer commonly used 
and has been replaced by ``USDA Foods.'' In accordance with the changes 
proposed in d. Food Distribution on Indian Reservations, ii. Removal of 
Urban Place Definition (Sec.  253.2 and Sec.  253.5), the Department 
proposes removing the references to the urban place definition and 
related terminology and the requirement to provide justification to 
FNS.

Section 2: Implementation

    The Department proposes that State agencies, ITOs, and other 
affected parties must implement the provisions of this rule no later 
than 60 days after the date of publication of the final rule in the 
Federal Register. The Department seeks comments on the type and scope 
of administrative burden that may be associated with implementing the 
provisions in this proposed rule in this manner.

Section 3: Procedural Matters

Executive Order 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility.
    Under Executive Order 12866, as amended, OMB's Office of 
Information and Regulatory Affairs (OIRA) determines whether a 
regulatory action is significant and, therefore, subject to OMB review. 
OMB determined this proposed rule to be not significant under E.O. 
12866, as amended.

Regulatory Impact Analysis

    OMB designated this rule as not significant. Therefore, no 
Regulatory Impact Analysis is required.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies 
to analyze the impact of rulemaking on small entities and consider 
alternatives that would minimize any significant impacts on a 
substantial number of small entities. Pursuant to that review, it has 
been certified that this rule would not have a significant impact on a 
substantial number of small entities.
    While there may be some burden/impact on some small eligible 
recipient agencies in TEFAP because of the proposed requirement to 
report participation in TEFAP, the impact is not significant because 
these entities are already collecting this information as a part of 
their normal program operations under existing regulatory requirements.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a major rule, as defined by 5 U.S.C. 804(2).

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for federal agencies to assess the 
effects of their regulatory actions on State, local and Tribal 
governments and the private sector. Under section 202 of the UMRA, the 
Department generally must prepare a written statement, including a cost 
benefit analysis, for proposed and final rules with ``Federal 
mandates'' that may result in expenditures by State, local or Tribal 
governments, in the aggregate, or the private sector, of $146 million 
or more (when adjusted for inflation; GDP deflator source: Table 1.1.9 
at https://www.bea.gov/iTable) in any one year. When such a statement is 
needed for a rule, Section 205 of the UMRA generally requires the 
Department to identify and consider a reasonable number of regulatory 
alternatives and adopt the most cost effective or least burdensome 
alternative that achieves the objectives of the rule.
    This proposed rule does not contain Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local and 
Tribal governments or the private sector of $146 million or more in any 
one year. Thus, the rule is not subject to the requirements of sections 
202 and 205 of the UMRA.

Executive Order 12372

    Program names are listed in the Catalog of Federal Domestic 
Assistance under Numbers 10.565 (CSFP), 10.569 (TEFAP), 10.568 (TEFAP 
Administrative Costs), 10.567 (FDPIR), and are subject to Executive 
Order 12372, which requires intergovernmental consultation with State 
and local officials. (See 2 CFR chapter IV.)

Federalism Summary Impact Statement

    Executive Order 13132 requires federal agencies to consider the 
impact of their regulatory actions on State and local governments. 
Where such actions have federalism implications, agencies are directed 
to provide a statement for inclusion in the preamble to the regulations 
describing the agency's considerations in terms of the three categories 
called for under section (6)(b)(2)(B) of Executive Order 13132.

[[Page 54920]]

    The Department has considered the impact of this rule on State and 
local governments and has determined that this rule does not have 
federalism implications. Therefore, under section 6(b) of the Executive 
Order, a federalism summary is not required.

Executive Order 12988, Civil Justice Reform

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule is intended to have preemptive effect 
with respect to any State or local laws, regulations or policies which 
conflict with its provisions or which would otherwise impede its full 
and timely implementation. This rule is not intended to have 
retroactive effect unless so specified in the Effective Dates section 
of the final rule. Prior to any judicial challenge to the provisions of 
the final rule, all applicable administrative procedures must be 
exhausted.

Civil Rights Impact Analysis

    FNS has reviewed this proposed rule in accordance with USDA 
Regulation 4300-004, ``Civil Rights Impact Analysis,'' to identify any 
major civil rights impacts the rule might have on program participants 
based on age, race, color, national origin, sex, or disability. A 
comprehensive Civil Rights Impact Analysis (CRIA) was conducted on the 
proposed rule, including an analysis of participant data and provisions 
contained in the proposed rule. The CRIA outlines outreach, mitigation, 
and monitoring strategies to lessen any possible civil rights impacts. 
The CRIA concludes by stating FNS believes that the promulgation of 
this proposed rule would impact State agencies, Indian Tribal 
Organizations (ITOs), local agencies and food banks, and participants. 
The proposed rule aims to improve access and parity for participants in 
the food distribution programs.
    However, FNS finds that the implementation of the outreach, 
mitigation, and monitoring strategies may lessen any impacts on these 
entities. If deemed necessary, FNS would propose further mitigation and 
outreach strategies to alleviate impacts that may result from the 
implementation of the final rule.

Executive Order 13175

    Executive Order 13175 requires federal agencies to consult and 
coordinate with Tribes on a government-to-government basis on policies 
that have Tribal implications, including regulations, legislative 
comments or proposed legislation, and other policy statements or 
actions that have substantial direct effects on one or more Indian 
Tribes, on the relationship between the Federal Government and Indian 
Tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian Tribes. On November 8, 2022, December 
6 and 13, 2022, February 22, 2023, and June 27, 2023, FNS provided the 
opportunity for Tribal consultation on the proposed rule and received 
substantive feedback from several Tribal leaders which were taken into 
consideration during the development of the proposed rule. Notes from 
these consultations are available at https://www.usda.gov/tribalrelations/tribal-consultations. Once the proposed rule is 
published in the Federal Register, FNS will encourage stakeholders 
representing Indian Tribal Organizations to provide input on whether 
the proposed rule poses any adverse Tribal implications. If a Tribe 
requests additional consultation in the future, FNS will work with the 
USDA Office of Tribal Relations to ensure meaningful consultation is 
provided. FNS is unaware of any current Tribal laws that could be in 
conflict with this proposed rule.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; 5 CFR 
1320) requires the Office of Management and Budget (OMB) approve all 
collections of information by a federal agency before they can be 
implemented. Respondents are not required to respond to any collection 
of information unless it displays a current valid OMB control number. 
FNS is seeking a new OMB Control Number for new, existing, and changing 
provisions in this rule subject to the Paperwork Reduction Act (PRA) of 
1995. Once OMB approves the new information collection request burden 
associated with this rulemaking, FNS will submit a request to merge the 
newly-approved burden hours into OMB Control Number 0584-0293, Food 
Distribution Programs, the existing collection to which they pertain, 
and will publish a Federal Register Notice announcing OMB's subsequent 
approval. Once the merge is approved, the newly assigned OMB control 
number can then be discontinued.
    Other unaffected burden inventories for this proposed rule have 
been approved under OMB Control Numbers 0584-0055 Child and Adult Care 
Food Program (expiration date August 31, 2025), 0584-0067 State 
Administrative Expense (SAE) Funds (expiration date January 31, 2026), 
and 0584-0594 Food Programs Reporting System (expiration date July 31, 
2023).
    Comments on this proposed rule must be received by October 13, 
2023.
    Comments may be sent to: Polly Fairfield, Food and Nutrition 
Service, U.S. Department of Agriculture, 1320 Braddock Place, 3rd 
Floor, Alexandria, Virginia 22314. Comments may also be submitted via 
email to Polly Fairfield ([email protected]). Comments will also 
be accepted through the Federal eRulemaking Portal. Go to https://www.regulations.gov and follow the online instructions for submitting 
comments electronically.
    Comments are invited on: (a) Whether the proposed collection of 
information is necessary for the proper performance of the functions of 
the agency, including whether the information shall have practical 
utility; (b) the accuracy of the agency's estimate of the burden of the 
proposed collection of information, including the validity of the 
methodology and assumptions used; (c) ways to enhance the quality, 
utility, and clarity of the information to be collected; and (d) ways 
to minimize the burden of the collection of information on those who 
are to respond, including use of appropriate automated, electronic, 
mechanical, or other technological collection techniques or other forms 
of information technology.
    All responses to this notice will be summarized and included in the 
request for OMB approval. All comments will also become a matter of 
public record.
    Title: Food Distribution Programs Improving Access and Parity--
Reporting and Recordkeeping Burden.
    OMB Number: 0584-NEW.
    Expiration Date: Not Yet Determined.
    Type of Request: New collection.
    Abstract:
    This is a new information collection. The Department proposes new 
information collections to improve understanding about the quantities 
and types of USDA Foods being provided nationally and within States 
during disasters and situations of distress, the organizations 
providing USDA Foods to eligible households through TEFAP and their 
locations for a clearer understanding of service coverage, and to 
increase knowledge about the number of persons served by TEFAP 
distribution of USDA Foods for home consumption. Below is summary of 
the changes proposed by the rulemaking and the accompanying reporting 
and recordkeeping requirements.
    Sections 250.69(d)(3) and 250.70(d)(3) reporting and recordkeeping 
requirements. During typical Presidentially declared emergencies, State 
distributing agencies submit FNS

[[Page 54921]]

Form FNS-292A, Report of Commodity Distribution for Disaster Relief, to 
FNS 45 days after the termination of disaster assistance to report the 
types and amounts of USDA Foods used in disaster assistance. The length 
of the COVID-19 pandemic and the quantity of USDA Foods distributed 
presented a challenge for USDA's ability to track USDA Foods 
inventories available nationally and within States, and USDA and State 
distributing agencies' ability to source and distribute foods to meet 
the needs of the public with reporting limited to after the end of the 
disaster assistance period. To improve USDA's ability to mobilize foods 
to areas affected by disasters, the Department proposes requiring a new 
weekly report which State distributing agencies must complete if 
disaster household distribution persists for longer than 14 calendar 
days. Weekly tracking of USDA Foods served via disaster household 
distribution, beginning 14 days after the start of distribution, would 
improve USDA's and State distributing agencies' understanding of the 
quantity and types of USDA Foods available for emergency response and 
facilitate USDA's efforts to replace USDA Foods used in disaster 
response. The proposed weekly reporting would also require State 
distributing agencies to report the total number of individuals 
receiving assistance through disaster household distributions, which 
would provide USDA with an improved understanding of how many affected 
individuals are receiving assistance. The Department estimates that 5 
State, local, or Tribal government respondents would complete 23 
responses in a year, with each response taking 1 hour to complete. The 
proposed total annual burden is estimated to be 115.00 hours, annually.
    Section 251.4(l) Public posting of availability of USDA Foods. The 
Department proposes requiring TEFAP State agencies to post the name, 
address, and a contact telephone number for all eligible recipient 
agencies which distribute USDA Foods to other eligible recipient 
agencies, to eligible households for home consumption, or in prepared 
meals to publicly available websites. The Department proposes requiring 
State agencies to update this information annually. Requiring State 
agencies to report complete eligible recipient agency information on 
publicly accessible websites would help eligible households understand 
where they may receive benefits, and which eligible recipient agencies 
they may contact for additional program information. The Department 
estimates that 54 State agency respondents would complete 1 response 
each year, with each response taking 8 hours to complete. The proposed 
total annual burden is estimated to be 432.00 hours, annually.
    Section 251.10(b)(3) report of eligible recipient agency list. The 
Department proposes to require TEFAP State agencies report the name, 
address, and a contact telephone number for all eligible recipient 
agencies which distribute USDA Foods to other eligible recipient 
agencies, to eligible households for home consumption, or in prepared 
meals to FNS on an annual basis so that FNS may understand where TEFAP 
services are offered and the landscape of eligible recipient agencies 
receiving USDA Foods nationally. This would allow FNS to better 
understand areas where there may be gaps in service, and work with 
States to eliminate these gaps. The Department estimates that 54 State 
agency respondents would complete 1 response each year, with each 
response taking 2 hours to complete. The proposed total annual burden 
is estimated to be 108.00 hours, annually.
    Section 251.10(b)(4) Recipients of USDA Foods for home consumption. 
Existing regulations at Sec.  251.10(a)(3) require each distribution 
site to collect and maintain on record the number of persons in each 
household receiving USDA Foods for home consumption, as well as other 
household information. The Department proposes adding a new requirement 
for State agencies to report the total number of persons receiving USDA 
Foods for home consumption. State agencies would be required to report 
the monthly number of individuals receiving USDA Foods in this manner 
on a quarterly basis. This report will help the Department understand 
how many households participate in TEFAP through the distribution of 
USDA Foods for home consumption. The Department estimates that 54 State 
agencies will complete 4 responses annually, with each response taking 
2 hours to complete. The proposed total annual burden is estimated to 
be 432.00 hours, annually.
    In addition to the above reporting requirements, FNS has reviewed 
all information collections associated with 7 CFR parts 240, 247, 250, 
251, 253, and 254 and determined that no additional changes are needed 
to existing reporting and recordkeeping requirements. Those adjustments 
result in a net burden increase of 1,087 hours for 0584-NEW. After OMB 
has approved the information collection requirements submitted in 
conjunction with the final rule, FNS will merge the requirements and 
their burden into the existing program information collection request 
to which they pertain: OMB Control Number 0584-0293, Food Distribution 
Programs. This would result in a net burden increase of 1,087 hours for 
0584-0293.
    The table below summarizes the changes to all burden numbers 
associated with 7 CFR parts 240, 247, 250, 251, 253, and 254. For 
additional details, see the information collection material included in 
the docket to this rule.

----------------------------------------------------------------------------------------------------------------
                                     Estimated       Number of                       Estimated
         Affected public             number of     responses per   Total annual     total hours      Estimated
                                    respondents     respondent       responses     per response    total burden
----------------------------------------------------------------------------------------------------------------
                                                    Reporting
----------------------------------------------------------------------------------------------------------------
State, Local, and Tribal                  26,585            8.78      233,499.24            0.26       60,431.75
 Governments....................
Private For Profit..............           4,013          213.98      858,787.33            0.03       23,985.88
Private Not for Profit..........             840            3.86        3,240.00            0.19          614.50
Individual......................      725,700.00            1.97    1,428,200.00            0.25      361,650.00
                                 -------------------------------------------------------------------------------
    Total Burden Estimates......      757,138.33            3.33    2,523,726.57            0.18      446,682.13
----------------------------------------------------------------------------------------------------------------
                                                  Recordkeeping
----------------------------------------------------------------------------------------------------------------
State, Local, and Tribal               51,611.00            9.14      471,683.46            0.08       35,491.18
 Governments....................
Private For Profit..............           4,775          216.62    1,034,429.00            0.06       62,671.72
Private Not for Profit..........           3,079            4.15       12,782.00           52.63      672,662.29

[[Page 54922]]

 
Individual......................               0            0.00            0.00            0.00            0.00
                                 -------------------------------------------------------------------------------
    Total Estimated                    59,465.33           25.54    1,518,894.46            0.51      770,825.19
     Recordkeeping Burden.......
----------------------------------------------------------------------------------------------------------------
                                      Total of Reporting and Recordkeeping
----------------------------------------------------------------------------------------------------------------
Reporting.......................      757,138.33            3.33    2,523,726.57            0.18      446,682.13
Recordkeeping...................       59,465.33           25.54    1,518,894.46            0.51      770,825.19
                                 -------------------------------------------------------------------------------
    Total.......................      757,138.33            5.34    4,042,621.03            0.30    1,217,507.32
----------------------------------------------------------------------------------------------------------------

E-Government Act Compliance

    The Department is committed to complying with the E-Government Act 
of 2002, to promote the use of the internet and other information 
technologies to provide increased opportunities for citizen access to 
Government information and services, and for other purposes.

List of Subjects

7 CFR Part 247

    Aged, Agricultural commodities, Food assistance programs, Public 
assistance programs.

7 CFR Part 250

    Administrative practice and procedure, Aged, Disaster assistance, 
Food assistance programs, Grant programs-social programs, Indians, 
Infants and children, Reporting and recordkeeping requirements, Surplus 
agricultural commodities.

7 CFR Part 251

    Food assistance programs, Grant programs-social programs, Reporting 
and recordkeeping requirements, Surplus agricultural commodities.

7 CFR Part 253

    Administrative practice and procedure, Agricultural commodities, 
Food assistance programs, Grant programs-social programs, Indians, 
Reporting and recordkeeping requirements, Surplus agricultural 
commodities.

7 CFR Part 254

    Food assistance programs, Grant programs-social programs, Indians, 
Reporting and recordkeeping requirements, Surplus agricultural 
commodities.

    Accordingly, FNS proposes to amend 7 CFR parts 247, 250, 251, 253, 
and 254 to read as follows:

PART 247--COMMODITY SUPPLEMENTAL FOOD PROGRAM

0
1. The authority citation for part 247 continues to read as follows:

    Authority: Sec. 5, Pub. L. 93-86, 87 Stat. 249, as added by Sec. 
1304(b)(2), Pub. L. 95-113, 91 Stat. 980 (7 U.S.C. 612c note); sec. 
1335, Pub. L. 97-98, 95 Stat. 1293 (7 U.S.C. 612c note); sec. 209, 
Pub. L. 98-8, 97 Stat. 35 (7 U.S.C. 612c note); sec. 2(8), Pub. L. 
98-92, 97 Stat. 611 (7 U.S.C. 612c note); sec. 1562, Pub. L. 99-198, 
99 Stat. 1590 (7 U.S.C. 612c note); sec. 101(k), Pub. L. 100-202; 
sec. 1771(a), Pub. L. 101-624, 101 Stat. 3806 (7 U.S.C. 612c note); 
sec 402(a), Pub. L. 104-127, 110 Stat. 1028 (7 U.S.C. 612c note); 
sec. 4201, Pub. L. 107-171, 116 Stat. 134 (7 U.S.C. 7901 note); sec. 
4221, Pub. L. 110-246, 122 Stat. 1886 (7 U.S.C. 612c note); sec. 
4221, Pub. L. 113-79, 7 U.S.C. 612c note).

0
2. Amend Sec.  247.1 by:
0
a. Removing the definitions of ``Commodities'' and ``Elderly persons'';
0
b. Revising the definition of ``Proxy''; and
0
c. Adding a definition of ``USDA Foods''.
    The addition and revision read as follows:


Sec.  247.1  Definitions.

* * * * *
    Proxy means any person designated by a participant or caretaker to 
obtain supplemental foods on behalf of the participant.
* * * * *
    USDA Foods means foods purchased by USDA to supplement the diets of 
CSFP participants, also referred to as donated foods.
* * * * *


Sec.  247.2  [Amended]

0
3. In Sec.  247.2 amend paragraph (a) by:
0
a. In the first sentence, removing the term ``elderly persons'' and 
adding in its place the term ``participants''; and
0
b. Removing the second sentence.
0
4. Amend Sec.  247.5 by:
0
a. Revising paragraphs (b)(14) and (15) and adding (b)(16) and (17); 
and
0
b. Revising paragraph (c)(7).
    The revisions and additions read as follows:


Sec.  247.5  State and local agency responsibilities.

* * * * *
    (b) * * *
    (14) Providing guidance to local agencies, as needed;
    (15) Ensuring that program participation does not exceed the State 
agency's caseload allocation on an average monthly basis; and
    (16) Making publicly available a list of all CSFP distribution 
sites, including local agencies and agencies operating under an 
agreement with a local agency, on a publicly available internet web 
page. The State agency must post the name, address, and telephone 
number for each site. The list must be updated, at a minimum, on an 
annual basis.
    (17) Posting the State Plan that is currently in use on a publicly 
available internet web page.
    (c) * * *
    (7) Meeting the special needs of homebound participants, to the 
extent possible; and
* * * * *
0
5. Amend Sec.  247.6 by revising the last sentence of paragraph (a) and 
paragraphs (c)(5), (c)(10), (11), and (12), and adding (c)(13) to read 
as follows:


Sec.  247.6  State Plan.

    (a) * * * A copy of the State Plan must be kept on file at the 
State agency and must also be posted on a publicly available internet 
web page for public inspection.
* * * * *
    (c) * * *
    (5) A description of plans for conducting outreach to participants;
* * * * *
    (10) A description of the means by which the State will meet the 
needs of homebound participants;
    (11) Copies of all agreements entered into by the State agency;
    (12) The length of the State agency's certification period; and
    (13) A description of the process in place to verify the identity 
of

[[Page 54923]]

participants before receipt of USDA Foods.
* * * * *
0
6. Amend Sec.  247.9 by revising paragraphs (b), (c), (d)(2) 
introductory text and (d)(3) to read as follows:


Sec.  247.9  Eligibility requirements.

* * * * *
    (b) What are the income eligibility requirements for CSFP 
applicants? The State agency must use a household income limit at or 
below 150 percent of the U.S. Federal Poverty Guidelines published 
annually by the U.S. Department of Health and Human Services (HHS). 
Participants in households with income at or below this level must be 
considered eligible for CSFP benefits (assuming they meet other 
requirements contained in this part). However, participants certified 
before September 17, 1986 (i.e., under the three elderly pilot 
projects) must remain subject to the eligibility criteria in effect at 
the time of their certification.
    (c) When must the State agency revise the CSFP income guidelines to 
reflect the annual adjustments of the Federal Poverty Income 
Guidelines? Each year, FNS will notify State agencies, by memorandum, 
of adjusted income guidelines by household size at 150 percent and 100 
percent of the U.S. Federal Poverty Guidelines published annually by 
HHS. The memorandum will reflect the annual adjustments to the Federal 
Poverty Income Guidelines issued by the Department of Health and Human 
Services. The State agency must implement the adjusted guidelines 
immediately upon receipt of the memorandum.
    (d) * * *
    (2) The State agency may exclude from consideration the following 
sources of income:
* * * * *
    (3) The State agency must exclude from consideration all income 
sources excluded by legislation. FNS will notify State agencies of 
forms of income excluded by statute through program policy memoranda. 
The income sources which must be excluded from consideration as income 
include, but are not limited to:
    (i) Reimbursements from the Uniform Relocation Assistance and Real 
Property Acquisition Policies Act of 1970 (Pub. L. 91-646, sec. 216, 42 
U.S.C. 4636);
    (ii) Any payment to volunteers under Title I (VISTA and others) and 
Title II (RSVP, foster grandparents, and others) of the Domestic 
Volunteer Service Act of 1973 (Pub. L. 93-113, sec. 404(g), 42 U.S.C. 
5044(g)) to the extent excluded by that Act;
    (iii) Payment to volunteers under section 8(b)(1)(B) of the Small 
Business Act (SCORE and ACE) (Pub. L. 95-510, sec. 101, 15 U.S.C. 
637(b)(1)(D));
    (iv) Income derived from certain submarginal land of the United 
States which is held in trust for certain Indian tribes (Pub. L. 94-
114, sec. 6, 25 U.S.C. 459e);
    (v) Payments received under the Job Training Partnership Act (Pub. 
L. 97-300, sec. 142(b), 29 U.S.C. 1552(b));
    (vi) Income derived from the disposition of funds to the Grand 
River Band of Ottawa Indians (Pub. L. 94-540, sec. 6);
    (vii) Payments received under the Alaska Native Claims Settlement 
Act (Pub. L. 100-241, sec. 15, 43 U.S.C. 1626(c));
    (viii) The value of assistance to children or their families under 
the National School Lunch Act, as amended (Pub. L. 94-105, sec. 9(d), 
42 U.S.C. 1760(e)), the Child Nutrition Act of 1966 (Pub. L. 89-642, 
sec. 11(b), 42 U.S.C. 1780(b)), and the Food and Nutrition Act of 2008 
(Pub. L. 95-113, sec. 1301, 7 U.S.C. 2017(b));
    (ix) Payments by the Indian Claims Commission to the Confederated 
Tribes and Bands of the Yakima Indian Nation or the Apache Tribe of the 
Mescalero Reservation (Pub. L. 95-433, sec. 2, 25 U.S.C. 609c-1);
    (x) Payments to the Passamaquoddy Tribe and the Penobscot Nation or 
any of their members received pursuant to the Maine Indian Claims 
Settlement Act of 1980 (Pub. L. 96-420, sec. 6, 9(c), 25 U.S.C. 
1725(i), 1728(c));
    (xi) Payments under the Low-income Home Energy Assistance Act, as 
amended (Pub. L. 99-125, sec. 504(c), 42 U.S.C. 8624(f));
    (xii) Student financial assistance received from any program funded 
in whole or part under Title IV of the Higher Education Act of 1965, 
including the Pell Grant, Supplemental Educational Opportunity Grant, 
State Student Incentive Grants, National Direct Student Loan, PLUS, 
College Work Study, and Byrd Honor Scholarship programs, which is used 
for costs described in section 472 (1) and (2) of that Act (Pub. L. 99-
498, section 479B, 20 U.S.C. 1087uu). The specified costs set forth in 
section 472 (1) and (2) of the Higher Education Act are tuition and 
fees normally assessed a student carrying the same academic workload as 
determined by the institution, and including the costs for rental or 
purchase of any equipment, materials, or supplies required of all 
students in the same course of study; and an allowance for books, 
supplies, transportation, and miscellaneous personal expenses for a 
student attending the institution on at least a half-time basis, as 
determined by the institution. The specified costs set forth in section 
472 (1) and (2) of the Act are those costs which are related to the 
costs of attendance at the educational institution and do not include 
room and board and dependent care expenses;
    (xiii) Payments under the Disaster Relief Act of 1974, as amended 
by the Disaster Relief and Emergency Assistance Amendments of 1989 
(Pub. L. 100-707, sec. 105(i), 42 U.S.C. 5155(d));
    (xiv) Effective July 1, 1991, payments received under the Carl D. 
Perkins Vocational Education Act, as amended by the Carl D. Perkins 
Vocational and Applied Technology Education Act Amendments of 1990 
(Pub. L. 101-392, sec. 501, 20 U.S.C. 2466d);
    (xv) Payments pursuant to the Agent Orange Compensation Exclusion 
Act (Pub. L. 101-201, sec. 1);
    (xvi) Payments received for Wartime Relocation of Civilians under 
the Civil Liberties Act of 1988 (Pub. L. 100-383, sec. 105(f)(2), 50 
App. U.S.C. 1989b-4(f)(2));
    (xvii) Value of any child care payments made under section 
402(g)(1)(E) of the Social Security Act, as amended by the Family 
Support Act (Pub. L. 100-485, sec. 301, 42 U.S.C. 602 (g)(1)(E));
    (xviii) Value of any ``at-risk'' block grant child care payments 
made under section 5081 of Pub. L. 101-508, which amended section 
402(i) of the Social Security Act;
    (xix) Value of any child care provided or paid for under the Child 
Care and Development Block Grant Act, as amended (Pub. L. 102-586, Sec. 
8(b)), 42 U.S.C. 9858q);
    (xx) Mandatory salary reduction amount for military service 
personnel which is used to fund the Veteran's Educational Assistance 
Act of 1984 (GI Bill), as amended (Pub. L. 99-576, sec. 303(a)(1), 38 
U.S.C. 1411 (b));
    (xxi) Payments received under the Old Age Assistance Claims 
Settlement Act, except for per capita shares in excess of $2,000 (Pub. 
L. 98-500, sec. 8, 25 U.S.C. 2307);
    (xxii) Payments received under the Cranston-Gonzales National 
Affordable Housing Act, unless the income of the family equals or 
exceeds 80 percent of the median income of the area (Pub. L. 101-625, 
sec. 522(i)(4), 42 U.S.C. 1437f nt);
    (xxiii) Payments received under the Housing and Community 
Development Act of 1987, unless the income of the family increases at 
any time to not less than 50 percent of the median income

[[Page 54924]]

of the area (Pub. L. 100-242, sec. 126(c)(5)(A), 25 U.S.C. 2307);
    (xxiv) Payments received under the Sac and Fox Indian claims 
agreement (Pub. L. 94-189, sec. 6);
    (xxv) Payments received under the Judgment Award Authorization Act, 
as amended (Pub. L. 97-458, sec. 4, 25 U.S.C. 1407 and Pub. L. 98-64, 
sec. 2(b), 25 U.S.C. 117b(b));
    (xxvi) Payments for the relocation assistance of members of Navajo 
and Hopi Tribes (Pub. L. 93-531, sec. 22, 22 U.S.C. 640d-21);
    (xxvii) Payments to the Turtle Mountain Band of Chippewas, Arizona 
(Pub. L. 97-403, sec. 9);
    (xxviii) Payments to the Blackfeet, Grosventre, and Assiniboine 
tribes (Montana) and the Papago (Arizona) (Pub. L. 97-408, sec. 8(d));
    (xxiv) Payments to the Assiniboine Tribe of the Fort Belknap Indian 
community and the Assiniboine Tribe of the Fort Peck Indian Reservation 
(Montana) (Pub. L. 98-124, sec. 5);
    (xxx) Payments to the Red Lake Band of Chippewas (Pub. L. 98-123, 
sec. 3);
    (xxxi) Payments received under the Saginaw Chippewa Indian Tribe of 
Michigan Distribution of Judgment Funds Act (Pub. L. 99-346, sec. 
6(b)(2));
    (xxxii) Payments to the Chippewas of Mississippi (Pub. L. 99-377, 
sec. 4(b));
    (xxxiii) Payments received by members of the Armed Forces and their 
families under the Family Supplemental Subsistence Allowance from the 
Department of Defense (Pub. L. 109-163, sec. 608); and
    (xxxiv) Payments received by property owners under the National 
Flood Insurance Program (Pub. L. 109-64).
    (xxxv) Combat pay received by the household member under Chapter 5 
of Title 37 or as otherwise designated by the Secretary.
* * * * *
0
7. Amend Sec.  247.10 by revising the section heading and paragraph (b) 
to read as follows:


Sec.  247.10  Distribution and use of USDA Foods in CSFP.

* * * * *
    (b) What must the local agency do to ensure that USDA Foods are 
distributed only to CSFP participants? The local agency must have a 
process in place, in accordance with State agency requirements, to 
verify the identity of participants or the participant's proxy before 
distributing USDA Foods to that person.
* * * * *
0
8. Amend Sec.  247.14 by revising paragraphs (a)(2) and (3) and adding 
(a)(4) to read as follows:


Sec.  247.14  Other public assistance programs.

    (a) * * *
    (2) Medical assistance provided under Title XIX of the Social 
Security Act (42 U.S.C. 1396 et seq.), including medical assistance 
provided to a qualified Medicare beneficiary (42 U.S.C. 1395(p) and 
1396d(5));
    (3) The Supplemental Nutrition Assistance Program (7 U.S.C. 2011 et 
seq.); and
    (4) The Senior Farmers' Market Nutrition Program (7 U.S.C. 3007 et 
seq.).
* * * * *
0
9. Amend Sec.  247.21 by revising the first sentence of paragraph 
(a)(3) to read as follows:


Sec.  247.21  Caseload assignment.

* * * * *
    (a) * * *
    (3) New caseload. Each State agency requesting to begin 
participation in the program, and with an approved State Plan, may 
receive caseload to serve participants, as requested in the State Plan. 
* * *
* * * * *
0
10. Amend Sec.  247.28 by revising the section heading to read as 
follows:


Sec.  247.28  Storage and inventory of USDA Foods.

* * * * *
0
11. Amend Sec.  247.37(a) by revising the last sentence to read as 
follows:


Sec.  247.37  Civil Rights Requirements.

    (a) * * * State and local agencies must ensure that the program is 
operated in accordance with the most up-to-date USDA nondiscrimination 
statement.
* * * * *

PART 247 [Amended]

0
12. In addition to the amendments set forth above, amend part 247 by 
removing the word ``commodities'' wherever it appears and adding, in 
its place, the words ``USDA Foods''.

PART 250--DONATION OF FOODS FOR USE IN THE UNITED STATES, ITS 
TERRITORIES AND POSSESSIONS AND AREAS UNDER ITS JURISDICTION

0
13. The authority citation for part 250 continues to read as follows:

    Authority: 5 U.S.C. 301; 7 U.S.C. 612c, 612c note, 1431, 1431b, 
1431e, 1431 note, 1446a-1, 1859, 2014, 2025; 15 U.S.C. 713c; 22 
U.S.C. 1922; 42 U.S.C. 1751, 1755, 1758, 1760, 1761, 1762a, 1766, 
3030a, 5179, 5180.

0
14. Revise Sec.  250.69 to read as follows:


Sec.  250.69  Disasters.

    (a) Use of USDA Foods to provide congregate meals. The distributing 
agency may provide USDA Foods from current inventories, either at the 
distributing or recipient agency level, to a disaster organization (as 
defined in Sec.  250.2), for use in providing congregate meals to 
persons in need of food assistance as a result of a Presidentially 
declared disaster or emergency (hereinafter referred to collectively as 
a ``disaster''). FNS approval is not required for such use.
    (1) Notification of congregate meals activity to FNS. Prior to 
using USDA Foods for congregate meals under this section, the 
distributing agency must notify FNS that such assistance is to be 
provided, and the period of time that it is expected to be needed. The 
distributing agency may extend such period of assistance as needs 
dictate but must notify FNS of such extension.
    (2) Selection of disaster organizations for disaster congregate 
meal service by the distributing agency. Distributing agencies are 
responsible for choosing disaster organizations to implement congregate 
meal service, subject to FNS approval as described in paragraph (a)(1) 
of this section. Before distribution of USDA Foods to a disaster 
organization for congregate meal service, the distributing agency must 
review and approve such organization's application in accordance with 
applicable FNS guidance. A disaster organization's application must be 
submitted to the distributing agency in written form. The disaster 
organization's application must, to the extent possible, include the 
following information at a minimum:
    (i) A description of the disaster situation;
    (ii) The number of people requiring assistance;
    (iii) The period of time for which USDA Foods are requested;
    (iv) The quantity and types of USDA Foods needed; and
    (v) The name, number and location of sites where USDA Foods are to 
be used, to the extent that such information is known.
    (3) Eligibility of emergency relief workers for congregate meals. 
The disaster organization may use USDA Foods to provide meals to any 
emergency relief workers at the congregate feeding site who are 
directly engaged in providing relief assistance.
    (b) Use of USDA Foods for distribution to households. Subject to 
FNS approval, the distributing agency may provide USDA Foods from 
current inventories in accordance with paragraph (c) of this section, 
either at

[[Page 54925]]

the distributing or recipient agency level, to a disaster organization, 
for distribution to households in need of food assistance because of a 
disaster. Once approved, such distribution may continue for the period 
that FNS has determined to be necessary to meet the needs of such 
households. Distributing agencies may request an extension of the 
distribution period, subject to FNS approval.
    (1) FNS approval of disaster household distribution. Before 
permitting the distribution of USDA Foods to a disaster organization 
for household distribution, the distributing agency must submit an 
application to FNS for review and approval. The distributing agency's 
application must, to the extent possible, include the following 
information:
    (i) A description of the disaster situation;
    (ii) The number of people requiring assistance;
    (iii) The period of time for which USDA Foods are requested;
    (iv) The quantity and types of USDA Foods needed;
    (v) The name, number, and location of sites where USDA Foods are to 
be used, to the extent that such information is known;
    (vi) An explanation as to why household distribution is needed; and
    (vii) The method(s) of distribution available.
    (2) Selection of a disaster organization for disaster household 
distribution of USDA Foods. Distributing agencies are responsible for 
choosing disaster organizations to implement congregate meal service, 
subject to FNS approval as described in paragraph (b)(1) of this 
section. Before distribution of USDA Foods to a disaster organization, 
the distributing agency must review and approve such organization's 
application in accordance with applicable FNS guidance, which must be 
submitted to the distributing agency either electronically or in 
written form. The distributing agency must also submit such application 
to FNS for review and approval before permitting distribution of USDA 
Foods to households.
    (c) Limitation on impacts to other programs. Distributing agencies 
must ensure that the operation of disaster congregate meal service and/
or disaster household distribution is not administered in lieu of 
regular program operations nor does it negatively impact the 
distribution of USDA Foods through other programs in the State.
    (d) Reporting and recordkeeping requirements. The distributing 
agency must report the following to FNS:
    (1) The number, names, and locations of sites where USDA Foods are 
used in congregate meals or household distribution as these sites are 
established.
    (2) The types and amounts of USDA Foods from distributing or 
recipient agency storage facilities used in disaster assistance, 
utilizing form FNS-292A, Report of Commodity Distribution for Disaster 
Relief, which must be submitted electronically, within 45 days from the 
termination of disaster assistance. This form must also be used to 
request replacement of USDA Foods, in accordance with paragraph (e) of 
this section. The distributing agency must maintain records of reports 
and other information relating to disasters.
    (3) If the distributing agency is operating disaster household 
distribution per 250.69(b), and the disaster household distribution 
continues past 14 calendar days, the distributing agency must submit a 
weekly report to FNS, utilizing the format requested by FNS. This 
report must be submitted electronically each week that the disaster 
household distribution continues operation. Weekly reports must 
include:
    (i) The weekly distribution start and end dates;
    (ii) The total number of individual household members receiving 
assistance at all locations;
    (iii) Material identification codes for USDA Foods distributed;
    (iv) the USDA Foods description of the foods distributed; and
    (v) the total units of each food distributed.
    (e) Replacement of USDA Foods. In order to ensure replacement of 
USDA Foods used in disasters, the distributing agency must submit to 
FNS a request for such replacement, utilizing form FNS-292A, Report of 
Commodity Distribution for Disaster Relief, within 45 days following 
the termination of disaster assistance. The distributing agency may 
request replacement of USDA Foods used from inventories in which USDA 
Foods are commingled with other foods (i.e., at storage facilities of 
recipient agencies utilizing single inventory management), if the 
recipient agency received USDA Foods of the same type as the foods used 
during the year preceding the onset of the disaster assistance. FNS 
will replace such USDA Foods in the amounts used, or in the amount of 
like USDA Foods received during the preceding year, whichever is less.
    (f) Reimbursement of transportation costs. In order to receive 
reimbursement for any costs incurred in transporting USDA Foods within 
the State, or from one State to another, for use in disasters, the 
distributing agency must submit a public voucher to FNS with 
documentation of such costs. FNS will review the request and reimburse 
the distributing agency.
0
15. Revise Sec.  250.70 to read as follows:


Sec.  250.70  Situations of distress.

    (a) Use of USDA Foods to provide congregate meals. The distributing 
agency may provide USDA Foods from current inventories, either at the 
distributing or recipient agency level, to a disaster organization, for 
use in providing congregate meals to persons in need of food assistance 
because of a situation of distress, as this term is defined in Sec.  
250.2.
    (1) Notification of congregate meals activity to FNS. If the 
situation of distress results from a natural event (e.g., a hurricane, 
flood, or snowstorm), congregate meals may be provided for a period not 
to exceed 30 days, without the need for FNS approval. However, the 
distributing agency must notify FNS that such assistance is to be 
provided. FNS approval must be obtained to permit such USDA Foods 
assistance for a period exceeding 30 days. If the situation of distress 
results from other than a natural event (e.g., an explosion), FNS 
approval is required to permit USDA Foods assistance for use in 
providing congregate meals for any period of time.
    (2) Selection of disaster organizations for disaster congregate 
meal service by the distributing agency. Distributing agencies are 
responsible for choosing disaster organizations to implement congregate 
meal service, subject to approval as described in paragraph (a)(1) of 
this section. Before distribution of USDA Foods to a disaster 
organization, the distributing agency must review and approve such 
organization's application in accordance with applicable FNS guidance, 
which must be submitted to the distributing agency in written form. The 
distributing agency must also submit such application to FNS for review 
and approval before permitting distribution of USDA Foods in a 
situation of distress that is not the result of a natural event. The 
disaster organization's application must, to the extent possible, 
include the following information:
    (i) A description of the situation of distress;
    (ii) The number of people requiring assistance;
    (iii) The period of time for which USDA Foods are requested;
    (iv) The quantity and types of USDA Foods needed; and

[[Page 54926]]

    (v) The name, number and location of sites where USDA Foods are to 
be used, to the extent that such information is known.
    (3) Eligibility of emergency relief workers for congregate meals. 
The disaster organization may use USDA Foods to provide meals to any 
emergency relief workers at the congregate feeding site that are 
directly engaged in providing relief assistance.
    (b) Use of USDA Foods for distribution to households. The 
distributing agency must receive FNS approval to provide USDA Foods 
from current inventories in accordance with paragraph (c) of this 
section, either at the distributing or recipient agency level, to a 
disaster organization for distribution to households in need of food 
assistance because of a situation of distress. Such distribution may 
continue for the period of time that FNS determines necessary to meet 
the needs of such households. Before permitting the distribution of 
USDA Foods for household distribution, the distributing agency must 
submit an application to FNS for review and approval. The distributing 
agency's application must, to the extent possible, include the 
following information:
    (1) A description of the situation of distress;
    (2) The number of people requiring assistance;
    (3) The period of time for which USDA Foods are requested;
    (4) The quantity and types of USDA Foods needed;
    (5) The name, number, and location of sites where USDA Foods are to 
be used, to the extent that such information is known;
    (6) An explanation as to why household distribution is needed; and
    (7) The method(s) of distribution available.
    (c) Limitation on impacts to other programs. Distributing agencies 
must ensure that the operation of congregate meal service and/or 
disaster household distribution in situations of distress is not 
administered in lieu of regular program operations nor does it 
negatively impact the distribution of USDA Foods through other programs 
in the State.
    (d) Reporting and recordkeeping requirements. The distributing 
agency must report the following to FNS:
    (1) The number, names, and locations of sites where USDA Foods are 
used in congregate meals or household distribution as these sites are 
established.
    (2) The distributing agency must also report the types and amounts 
of USDA Foods from distributing or recipient agency storage facilities 
used in the situation of distress, utilizing form FNS-292A, Report of 
Commodity Distribution for Disaster Relief, which must be submitted 
electronically, within 45 days from the termination of assistance. This 
form must also be used to request replacement of USDA Foods, in 
accordance with paragraph (e) of this section. The distributing agency 
must maintain records of reports and other information relating to 
situations of distress.
    (3) If the distributing agency is operating disaster household 
distribution per 250.70(b), and the disaster household distribution 
continues past 14 calendar days, the distributing agency must submit a 
weekly report to FNS, utilizing the format requested by FNS. This 
report must be submitted electronically each week that the disaster 
household distribution continues operation. Weekly reports must 
include:
    (i) The weekly distribution start and end dates;
    (ii) The total number of individual household members receiving 
assistance at all locations;
    (iii) Material identification codes for USDA Foods distributed;
    (iv) The USDA Foods description of the foods distributed; and
    (v) The total units of each food distributed.
    (e) Replacement of USDA Foods. FNS will replace USDA Foods used in 
a situation of distress only to the extent that funds to provide for 
such replacement are available. The distributing agency must submit to 
FNS a request for replacement of such USDA Foods, utilizing form FNS-
292A, Report of Commodity Distribution for Disaster Relief, which must 
be submitted electronically, within 45 days from the termination of 
assistance. The distributing agency may request replacement of foods 
used from inventories in which USDA Foods are commingled with other 
foods (i.e., at storage facilities of recipient agencies utilizing 
single inventory management), if the recipient agency received USDA 
Foods of the same type as the USDA Foods used during the year preceding 
the onset of the situation of distress. Subject to the availability of 
funds, FNS will replace such USDA Foods in the amounts used, or in the 
amount of like USDA Foods received during the preceding year, whichever 
is less.
    (f) Reimbursement of transportation costs. In order to receive 
reimbursement for any costs incurred in transporting USDA Foods within 
the State, or from one State to another, for use in a situation of 
distress, the distributing agency must submit a public voucher to FNS 
with documentation of such costs. FNS will review the request and 
reimburse the distributing agency to the extent that funds are 
available.

PART 251--THE EMERGENCY FOOD ASSISTANCE PROGRAM

0
16. The authority citation for 7 CFR part 251 continues to read as 
follows:

    Authority:  7 U.S.C. 7501-7516; 7 U.S.C. 2011-2036.


Sec.  251.2  [Amended]

0
17. Amend Sec.  251.2(a) by removing the words ``food commodities'' and 
adding, in their place, the words ``USDA Foods''.
0
18. Amend Sec.  251.3 by revising paragraph (f) to read as follows:


Sec.  251.3  Definitions.

* * * * *
    (f) Food bank means a public or charitable institution that 
maintains an established operation involving the provision of food to 
food pantries, soup kitchens, hunger relief centers, or other food or 
feeding centers that, as an integral part of their normal activities, 
provide meals or food to feed needy persons on a regular basis.
* * * * *
0
19. Amend Sec.  251.4 by revising the section heading and paragraphs 
(f)(3) and (k), and adding paragraph (l) to read as follows:


Sec.  251.4  Availability of USDA Foods.

* * * * *
    (f) * * *
    (3) The State shall require the processor to meet Federal, State, 
and local health standards.
* * * * *
    (k) Distribution in rural and Tribal areas. FNS encourages State 
agencies and eligible recipient agencies to implement or expand USDA 
Food distributions in rural, remote, and Tribal areas of the State 
wherever possible.
    (l) Public posting of availability of USDA Foods. State agencies 
must make publicly available the list of eligible recipient agencies 
outlined at Sec.  251.10(a)(3) and the State's uniform Statewide 
eligibility criteria to receive USDA Foods for household consumption as 
per Sec.  251.5(b), so as to ensure that eligible populations 
understand eligibility criteria and are able to identify where they may 
access USDA Foods. At minimum, State agencies must publicly post the 
names, addresses, and contact telephone numbers for all eligible 
recipient agencies which distribute USDA Foods to other eligible 
recipient agencies, to

[[Page 54927]]

eligible households for home consumption, or in prepared meals. The 
information must be posted on a publicly available internet web page 
and be updated on an annual basis or whenever changes to eligibility 
criteria are made.
0
20. Amend Sec.  251.5 by revising paragraphs (a)(1), and (b) to read as 
follows:


Sec.  251.5  Eligibility determinations.

    (a) * * *
    (1) Agencies distributing USDA Foods to households for home 
consumption. Organizations distributing USDA Foods to households for 
home consumption must limit the distribution of USDA Foods provided 
under this part to those households which meet the eligibility criteria 
established by the State agency in accordance with paragraph (b) of 
this section.
* * * * *
    (b) Criteria for determining recipient eligibility. Each State 
agency must establish uniform Statewide criteria for determining the 
eligibility of households to receive USDA Foods provided under this 
part for home consumption and must make these criteria publicly 
available as per Sec.  251.4(l). The criteria must:
    (1) Enable the State agency to ensure only households that need 
food assistance because of inadequate household income receive TEFAP 
commodities;
    (2) Include income-based standards and the methods by which 
households may demonstrate eligibility under such standards. Income-
based standards must include a maximum income eligibility threshold at 
or between 185 percent to 250 percent of the U.S. Federal Poverty 
Guidelines published annually by the U.S. Department of Health and 
Human Services (HHS). States may propose alternative income-based 
eligibility standards above this threshold with supporting rationale, 
subject to approval by FNS; and
    (3) Include a requirement that the household reside in the 
geographic location served by the State agency at the time of applying 
for assistance, and the method for how residency will be determined. 
Length of residency, address, or identification documents shall not be 
used as an eligibility criterion.
* * * * *
0
21. Amend Sec.  251.6 by revising paragraphs (a)(4) and (5) to read as 
follows:


Sec.  251.6  Distribution plan.

    (a) * * *
    (4) A description of the criteria established in accordance with 
Sec.  251.5(b) which must be used by eligible recipient agencies in 
determining the eligibility of households to receive food through The 
Emergency Food Assistance Program (TEFAP) for home consumption;
    (5) At the option of the State agency, a plan of operation for one 
or more Farm to Food Bank Projects in partnership with one or more 
emergency feeding organizations located in the State, as described in 
Sec.  251.13. The plan must include all items listed at Sec.  
251.13(e); and
* * * * *
0
22. Amend Sec.  251.8 by revising paragraphs (d), (e)(1) introductory 
text, (e)(1)(i), and (e)(4)(iii) to read as follows:


Sec.  251.8  Payment of funds for administrative costs.

* * * * *
    (d) Priority for eligible recipient agencies distributing USDA 
Foods. State agencies and eligible recipient agencies distributing 
administrative funds must ensure that the administrative funding needs 
of eligible recipient agencies which receive USDA Foods are met, 
relative to both USDA Foods and any non-USDA Foods they may receive, 
before such funding is made available to eligible recipient agencies 
which distribute only non-USDA Foods.
    (e) Use of funds--(1) Allowable administrative costs. State 
agencies and eligible recipient agencies may use funds made available 
under this part to pay the direct expenses associated with the 
distribution of USDA Foods and foods secured from other sources to the 
extent that the foods are ultimately distributed by eligible recipient 
agencies which have entered into agreements in accordance with Sec.  
251.2. Direct expenses include the following, regardless of whether 
they are charged to TEFAP as direct or indirect costs:
    (i) The intrastate and interstate transport, storing, handling, 
repackaging, processing, and distribution of foods (including donated 
wild game); except that for interstate expenditures to be allowable, 
the foods must have been specifically earmarked for the particular 
State or eligible recipient agency which incurs the cost;
* * * * *
    (4) * * *
    (iii) State agencies must not charge for foods made available under 
this part to eligible recipient agencies.
* * * * *
0
23. Amend Sec.  251.9 by revising paragraph (e) to read as follows:


Sec.  251.9  Matching of funds.

* * * * *
    (e) Reporting requirements. State agencies must identify their 
matching contribution on the FNS-667, Report of TEFAP Administrative 
Costs, in accordance with Sec.  251.10(b)(1).
* * * * *
0
24. Revise Sec.  251.10 to read as follows:


Sec.  251.10  Reports and recordkeeping.

    (a) Records--(1) Commodities. State agencies, subdistributing 
agencies (as defined in Sec.  250.3 of this chapter), and eligible 
recipient agencies must maintain records to document the receipt, 
disposal, and inventory of commodities received under this part that 
they, in turn, distribute to eligible recipient agencies. Such records 
must be maintained in accordance with the requirements set forth in 
Sec.  250.16 of this chapter. Eligible recipient agencies must sign a 
receipt for program commodities which they receive under this part for 
distribution to households or for use in preparing meals, and records 
of all such receipts must be maintained.
    (2) Administrative funds. In addition to maintaining financial 
records in accordance with 2 CFR part 200, subpart D, and USDA 
implementing regulations at 2 CFR part 400, State agencies must 
maintain records to document the amount of funds received under this 
part and paid to eligible recipient agencies for allowable 
administrative costs incurred by such eligible recipient agencies. 
State agencies must also ensure that eligible recipient agencies 
maintain such records.
    (3) Eligible recipient agency list. State agencies must maintain a 
list of eligible recipient agencies and post this information on a 
publicly available website, as described in Sec.  251.4(l).
    (4) Information about households receiving USDA Foods for home 
consumption. Each distribution site must collect and maintain on record 
for each household receiving USDA Foods for home consumption, the name 
of the household member receiving USDA Foods, the number of persons in 
the household, and the basis for determining that the household is 
eligible to receive USDA Foods for home consumption.
    (5) Record retention. All records required by this section must be 
retained for a period of 3 years from the close of the Federal Fiscal 
Year to which they pertain, or longer if related to an audit or 
investigation in progress. State agencies may take physical possession 
of such records on behalf of their eligible recipient agencies. 
However, such records must be reasonably accessible at all times for 
use during

[[Page 54928]]

management evaluation reviews, audits or investigations.
    (b) Reports--(1) Submission of Form FNS-667. Designated State 
agencies must identify funds obligated and disbursed to cover the costs 
associated with the program at the State and local level. State and 
local costs must be identified separately. The data must be identified 
on Form FNS-667, Report of Administrative Costs (TEFAP) and submitted 
to the appropriate FNS Regional Office on a quarterly basis. The 
quarterly report must be submitted no later than 30 calendar days after 
the end of the quarter to which it pertains. The final report must be 
submitted no later than 90 calendar days after the end of the fiscal 
year to which it pertains.
    (2) Reports of excessive inventory. Each State agency must complete 
and submit to the FNS Regional Office reports to ensure that excessive 
inventories of USDA Foods are not maintained, in accordance with the 
requirements of Sec.  250.18(a) of this chapter.
    (3) Report of eligible recipient agency list. On an annual basis, 
each State agency must provide the list of eligible recipient agencies 
and statewide eligibility criteria, as described in paragraph (a)(3) of 
this section, to FNS. The report should specify whether each eligible 
recipient agency has an agreement with the State agency or with another 
eligible recipient agency,
    (4) Recipients of USDA Foods for home consumption. State agencies 
must report the total number of persons receiving USDA Foods for home 
consumption as collected in paragraph (a)(4) of this section to FNS on 
a quarterly basis. This report must capture the total number of persons 
in all households which participated in each calendar month within the 
quarter.
    (c) Confidentiality of applicants and participants--(1) 
Confidential applicant and participant information. Confidential 
applicant and participant information is any information about an 
applicant or participant, whether it is obtained from the applicant or 
participant, another source, or generated as a result of TEFAP 
application, certification, or participation, that individually 
identifies an applicant or participant and/or family member(s). 
Applicant or participant information is confidential, regardless of the 
original source and exclusive of previously applicable confidentiality 
provided in accordance with other federal, state or local law.
    (2) Limits on disclosure of information obtained from applicants or 
participants. State and local agencies must restrict the use or 
disclosure of information obtained from TEFAP applicants or 
participants to persons directly connected with the administration or 
enforcement of the program. With the consent of the participant, the 
State or local agency may share information obtained with other health 
or welfare programs for use in determining eligibility for those 
programs, or for program outreach. However, the State agency must sign 
an agreement with the administering agencies for these programs to 
ensure that the information will be used only for the specified 
purposes, and that agencies receiving such information will not further 
share it.
    (3) Limits on disclosing the identity of persons making a complaint 
or allegation against an individual participating in or administering 
the program. The State and local agency must protect the 
confidentiality, and other rights, of any person making allegations or 
complaints against another individual participating in, or 
administering TEFAP, except as necessary to conduct an investigation, 
hearing, or judicial proceeding, as applicable.
0
25. Add Sec.  251.11 to read as follows:


Sec.  251.11  State monitoring system.

    (a) Each State agency must monitor the operation of the program to 
ensure that it is being administered in accordance with federal and 
state requirements. State agencies may not delegate this 
responsibility.
    (b) Unless specific exceptions are approved in writing by FNS, the 
State agency monitoring system must include:
    (1) An annual review of at least 25 percent of all eligible 
recipient agencies which have signed an agreement with the State agency 
pursuant to Sec.  251.2(c), provided each such agency must be reviewed 
no less frequently than once every four years; and
    (2) An annual review of one-tenth or 20, whichever is fewer, of all 
eligible recipient agencies which receive USDA Foods and/or 
administrative funds pursuant to an agreement with another eligible 
recipient agency. Reviews must be conducted, to the maximum extent 
feasible, simultaneously with actual distribution of USDA Foods and/or 
meal service, and eligibility determinations, if applicable. State 
agencies must develop a system for selecting eligible recipient 
agencies for review that ensures deficiencies in program administration 
are detected and resolved in an effective and efficient manner.
    (c) Each review must encompass, as applicable, eligibility 
determinations, food ordering procedures, storage and warehousing 
practices, inventory controls, approval of distribution sites, 
reporting and recordkeeping requirements, and civil rights.
    (d) Upon concurrence by FNS, reviews of eligible recipient agencies 
which have been conducted by FNS Regional Office personnel may be 
incorporated into the minimum coverage required by paragraph (b) of 
this section.
    (e) If deficiencies are disclosed through the review of an eligible 
recipient agency, the State agency must submit a report of the review 
findings to the eligible recipient agency and ensure that corrective 
action is taken to eliminate the deficiencies identified.
0
26. Add Sec.  251.12 to read as follows:


Sec.  251.12  Limitation on unrelated activities.

    (a) Activities unrelated to the distribution of USDA Foods or meal 
service may be conducted at distribution sites as long as:
    (1) The person(s) conducting the activity makes clear that the 
activity is not part of TEFAP and is not endorsed by the Department. 
Nutrition education materials, such as recipes or other information 
about USDA Foods, dates of future distributions, hours of operations, 
or information about other federal, state, or local government programs 
or services for the needy may be distributed without a clarification 
that the information is not endorsed by the Department;
    (2) The person(s) conducting the activity makes clear that 
cooperation is not a condition of the receipt of USDA Foods for home 
consumption or prepared meals containing USDA Foods (cooperation 
includes contributing money, signing petitions, or conversing with the 
person(s));
    (3) The activity is not conducted in a manner that disrupts the 
distribution of USDA Foods or meal service, and;
    (4) The activity does not involve information unrelated to TEFAP 
being placed in or printed on bags, boxes, or other containers in which 
USDA Foods are distributed.
    (b) Eligible recipient agencies and distribution sites shall ensure 
that activities unrelated to the distribution of USDA Foods or meal 
service are conducted in a manner consistent with paragraph (a) of this 
section.
    (c) Except as provided in paragraph (d) of this section, State 
agencies shall immediately terminate from further participation in 
TEFAP operations any eligible recipient agency that distributes or 
permits distribution of materials in a manner inconsistent with the 
provisions of paragraph (a) of this section.
    (d) The State agency may withhold termination of an eligible 
recipient

[[Page 54929]]

agency's or distribution site's TEFAP participation if the State agency 
cannot find another eligible recipient agency to operate the 
distribution in the area served by the violating organization. In such 
circumstances, the State agency shall monitor the violating 
organization to ensure that no further violations occur.
0
27. Add Sec.  251.13 to read as follows:


Sec.  251.13  Farm to Food Bank Projects.

    (a) Definition of project. Farm to Food Bank Projects are the 
harvesting, processing, packaging, or transportation of unharvested, 
unprocessed, or unpackaged commodities donated by agricultural 
producers, processors, or distributors for use by emergency feeding 
organizations under section 203D of the Emergency Food Assistance Act 
of 1983.
    (b) Availability and allocation of funds. Funds for the costs of 
carrying out a Farm to Food Bank Project will be allocated to State 
agencies as follows:
    (1) Funds made available to the Department for Farm to Food Bank 
Projects will be distributed to State agencies that have submitted an 
approved amendment to their State plan. The amendment must describe a 
plan of operation for a Farm to Food Bank Project and include all 
elements listed in paragraph (e) of this section. The plan of operation 
must be updated and resubmitted on an annual basis by the dates 
requested by FNS.
    (2) Funds for Farm to Food Bank Projects will be distributed each 
fiscal year to State agencies using the funding formula defined in 
Sec.  251.3(h).
    (3) Funds will be available to State agencies for one year from the 
date of allocation.
    (c) Purpose and use of funds. State agencies may only use funds 
made available under this section or the costs of carrying out a Farm 
to Food Bank Project.
    (1) Farm to Food Bank Projects must have a purpose of:
    (i) Reducing food waste at the agricultural production, processing, 
or distribution level through the donation of food;
    (ii) Providing food to individuals in need; and
    (iii) Building relationships between agricultural producers, 
processors, and distributors and emergency feeding organizations 
through the donation of food.
    (2) Project funds may only be used for costs associated with 
harvesting, processing, packaging, or transportation of unharvested, 
unprocessed, or unpackaged commodities donated by agricultural 
producers, processors, or distributors for use by emergency feeding 
organizations.
    (3) Project funds cannot be used to purchase foods or for 
agricultural production activities such as purchasing seeds or planting 
crops.
    (d) Matching of funds--(1) State matching requirement. The State 
agency must provide a cash or in-kind contribution at least equal to 
the amount of funding received under this paragraph (d) for a Farm to 
Food Bank Project.
    (2) Allowable contributions. State agencies shall meet the match 
requirement in paragraph (a)(4) of this section by providing allowable 
contributions as described at Sec.  251.9(c); contributions must only 
be for costs which would otherwise be allowable as a Farm to Food Bank 
Project cost.
    (3) Emergency feeding organization contributions. Cash or in-kind 
contributions from emergency feeding organizations that partner with 
the State agency to administer the Farm to Food Bank Project are 
allowable.
    (4) Food donations. Donations of foods, including the value of 
foods donated as a part of a Farm to Food Bank Project, cannot count 
toward the match requirement in paragraph (d) of this section.
    (e) Plans of Operation for Farm to Food Bank Projects. A plan of 
operation for a Farm to Food Bank Project must include:
    (1) A high-level summary of the Farm to Food Bank Project.
    (2) A description of the types of foods expected to be donated 
through the Project.
    (3) A list of emergency feeding organizations within the State that 
will operate the Project in partnership with the State agency.
    (4) A list of any State agencies that will operate the Project as a 
part of a cooperative agreement.
    (5) A description of the Project that includes how the Project 
will:
    (i) Reduce food waste at the agricultural production, processing, 
or distribution level through the donation of food;
    (ii) Provide food to individuals in need; and
    (iii) Build relationships between agricultural producers, 
processors, and distributors and emergency feeding organizations 
through the donation of food.
    (6) The fiscal year in which the Project will begin operating; and
    (7) A description of how the match requirement will be met.
    (f) Reallocation of funds. If, during the course of the fiscal 
year, the Department determines that a State agency will not expend all 
of the funds allocated to the State agency for a fiscal year under this 
section, the Department shall reallocate the unexpended funds to other 
States that have an approved State Plan describing a plan of operation 
for a Farm to Food Bank Project during that fiscal year or the 
subsequent fiscal year.
    (g) Reporting requirements. Each State agency to which Farm to Food 
Bank Project funds are allocated for a fiscal year must submit a report 
describing use of the funds. The data must be identified on Form SF-
425, Federal Financial Report, and submitted to the appropriate FNS 
Regional Office on a semiannual basis. The reports, including a final 
report, must be submitted by the dates requested by FNS.
    (h) Cooperative agreements. State agencies that carry out a Farm to 
Food Bank Project may enter into cooperative agreements with State 
agencies of other States to maximize the use of commodities donated 
under the project.
0
28. Ad Sec.  251.14 to read as follows:


Sec.  251.14  Miscellaneous.

    (a) USDA Foods not income. In accordance with section 206 of Public 
Law 98-8, as amended, and notwithstanding any other provision of law, 
USDA Foods distributed for home consumption and meals prepared from 
USDA Foods distributed under this part shall not be considered income 
or resources for any purposes under any federal, state, or local law.
    (b) Nondiscrimination. There shall be no discrimination in the 
distribution of USDA Foods for home consumption or availability of 
meals prepared from USDA Foods donated under this part in accordance 
with the most up-to-date USDA nondiscrimination statement.
    (c) Use of volunteer workers and non-USDA foods. In the operation 
of The Emergency Food Assistance Program, State agencies and eligible 
recipient agencies shall, to the maximum extent practicable, use 
volunteer workers and foods which have been donated by charitable and 
other types of organizations.
    (d) Maintenance of effort. The State may not reduce the expenditure 
of its own funds to provide USDA Foods or services to organizations 
receiving funds or services under the Emergency Food Assistance Act of 
1983 below the level of such expenditure existing in the fiscal year 
when the State first began administering TEFAP, or Fiscal Year 1988, 
which is the fiscal year in which the maintenance-of-effort requirement 
became effective, whichever is later.
    (e) Recruitment activities related to the Supplemental Nutrition 
Assistance

[[Page 54930]]

Program (SNAP). Any entity that receives USDA Foods identified in this 
section must adhere to regulations set forth under Sec.  277.4(b)(6) of 
this chapter.

PART 251 [Amended]

0
29. In addition the amendments above, amend part 251 by:
0
a. Removing the words ``commodity'' and ``commodities'' wherever they 
appear and adding, in their place, the words ``USDA Foods'';
0
b. Removing the words ``TEFAP commodities'' and ``TEFAP foods'' 
wherever they appear and adding, in their place, the words ``USDA 
Foods''; and
0
c. Removing the words ``donated commodity'', ``donated commodities'', 
``commodities donated'', ``USDA commodities'', ``USDA donated 
commodities'', ``donated food'', and ``program food'' wherever they 
appear and adding, in their place, the words ``USDA Foods''.

PART 253--ADMINISTRATION OF THE FOOD DISTRIBUTION PROGRAM FOR 
HOUSEHOLDS ON INDIAN RESERVATIONS

0
30. The authority citation for part 253 continues to read as follows:

    Authority: 91 Stat. 958 (7 U.S.C. 2011-2036).

0
31. Revise Sec.  253.1 to read as follows:


 Sec.  253.1  General Purpose and Scope.

    This part describes the terms and conditions under which: USDA 
Foods (available under part 250 of this chapter) may be distributed to 
households on or near all or any part of any Indian reservation, the 
program may be administered by capable Indian tribal organizations 
(ITOs) and funds may be obtained from the Department for the costs 
incurred in administering the program. This part also provides for the 
concurrent operation of the Food Distribution Program and the 
Supplemental Nutrition Assistance Program (SNAP) on Indian reservations 
when such concurrent operation is requested by an ITO.
0
32. Amend Sec.  253.2 by revising the definitions of ``Indian tribal 
organization (ITO)'', ``Overissuance'', and ``State agency'' and 
removing the definition of ``Urban place'' to read as follows:


 Sec.  253.2  Definitions.

* * * * *
    Indian Tribal Organization (ITO) means:
    (1) The recognized governing body of any Indian tribe on a 
reservation; or
    (2) The tribally recognized intertribal organization which the 
recognized governing bodies of two or more Indian tribes on a 
reservation authorize to operate the SNAP or a Food Distribution 
Program on their behalf.
* * * * *
    Overissuance means the dollar value of USDA Foods issued to a 
household that exceeds the dollar value of USDA Foods it was eligible 
to receive.
* * * * *
    State agency means:
    (1) The agency of State government, including the local offices 
thereof, which enters into an agreement with FNS for the distribution 
of USDA Foods on all or part of an Indian reservation, and
    (2) The ITO of any Indian tribe, determined by the Department to be 
capable of effectively administering a Food Distribution Program, which 
enters into an agreement with FNS for the distribution of USDA Foods on 
all or part of an Indian reservation.
0
33. Amend Sec.  253.3 by revising the section heading and paragraphs 
(a), (b) introductory text, (b)(1), and (d) to read as follows:


Sec.  253.3  Availability of USDA Foods.

    (a) Conditions for distribution. In jurisdictions where the Food 
Stamp Program is in operation, there shall be no distribution of 
commodities to households under the authority of any law, except that 
distribution may be made:
    (1) On a temporary basis under programs authorized by law to meet 
disaster relief needs;
    (2) For the purpose of the USDA Foods programs in accordance with 
the requirements of part 250 and with other federal regulations 
applicable to specific food assistance programs; and
    (3) Whenever a request for concurrent or separate Food Distribution 
Program on a reservation is made by an ITO.
    (b) Concurrent or separate food program operation. Distribution of 
USDA Foods under the Food Distribution Program, with or without the 
SNAP, shall be made whenever an ITO submits to FNS a completed 
application for the Food Distribution Program on all or part of a 
reservation and the application is approved by FNS.
    (1) Except as provided in paragraph (b)(2) of this section, when 
the Food Distribution Program is operating on all or part of a 
reservation, all eligible households within those boundaries may 
participate in the Food Distribution Program, or, if the ITO has 
elected concurrent operation of the SNAP, may elect to participate in 
either program, without regard to whether the household is an Indian 
tribal household.
* * * * *
    (d) Food distribution program benefits. Households eligible under 
this part shall receive a monthly food package based on the number of 
household members. The food package offered to each household shall 
consist of a quantity and variety of USDA Foods made available by the 
Department to provide eligible households with an opportunity to obtain 
a more nutritious diet and shall represent an acceptable nutritional 
alternative to SNAP benefits. The food package offered to each 
household by the State agency shall contain a variety of foods from 
each of the food groups in the Food Distribution Program on Indian 
Reservations Monthly Distribution Guide Rates by Household Size. FNS 
will periodically assess how the USDA Foods provided in the Food 
Distribution Program compares to the Dietary Guidelines for Americans 
and the market baskets of the Thrifty Food Plan and, to the extent 
practicable, will adjust the food package as needed to ensure that the 
food package benefit is in alignment. The food package benefit will not 
decrease based on this adjustment.


Sec.  253.4  [Amended]

0
34. Amend Sec.  253.4 by:
0
a. In paragraph (b)(3):
0
i. Removing the term ``contract'' and adding, in its place, the term 
``delegate''; and
0
ii. Removing the terms ``commodity'' and ``commodities'' and adding in 
their place the term ``USDA Foods''; and
0
b. In paragraph (d):
0
i. Removing the term ``Food Stamp Program'' and adding in its place the 
term ``SNAP''; and
0
ii. Removing the fifth and sixth sentences.
0
35. Amend Sec.  253.5 by revising paragraphs (a)(2)(iv) and (e) to read 
as follows:


 Sec.  253.5  State agency requirements.

    (a) * * *
    (2) * * *
    (iv) There shall be no discrimination in the certification of 
applicant households or in the distribution of USDA Foods in accordance 
with the most up-to-date USDA nondiscrimination statement and the Food 
Distribution Program will be operated in compliance with all 
nondiscrimination laws, regulations, and FNS guidance.
* * * * *
    (e) Outreach and referral. The State agency shall inform 
potentially eligible households of the availability of the

[[Page 54931]]

Food Distribution Program. The State agency shall develop and 
distribute printed information in the appropriate languages about the 
program and eligibility requirements. Outreach material shall contain 
information about a household's right to file an application on the 
same date it contacts the certification office. The State agency shall 
be sufficiently familiar with general eligibility requirements for the 
Supplemental Food Program for Women, Infants and Children (WIC), the 
Commodity Supplemental Food Program (if available to reservation 
residents), the Supplemental Security Income Program (SSI), and 
appropriate public and general assistance programs, to identify those 
applicants whose households contain persons who may be eligible for 
these programs, to inform the applicants of their potential 
eligibility, and to provide the applicants with the addresses and 
telephone numbers for these programs. For example, the State agency 
should provide information on the WIC program to applicants whose 
households contain pregnant women, nursing or postpartum women, or 
children up to the fifth birthday.
* * * * *
0
36. Amend Sec.  253.6 by
0
a. Revising paragraph (a)(1) introductory text;
0
b. Removing paragraphs (a)(2)(ii) and (iii);
0
c. Redesignating paragraphs (a)(2)(iv) and (v) as paragraphs 
(a)(2)(iii) and (iv);
0
d. Adding a new paragraph (a)(2)(ii);
0
e. Adding paragraph (a)(4); and
0
f. Revising paragraphs (c)(1), (d)(1)(i), (d)(3)(vii), (d)(3)(x)(C) and 
(e)
    The revisions and addition read as follows:


Sec.  253.6  Eligibility of households.

    (a) Household concept. (1) The State agency shall determine 
eligibility for the Food Distribution Program on a household basis. 
Household means any of the following individuals or groups of 
individuals, provided that such individuals or groups are not boarders 
or residents of an institution.
* * * * *
    (2) * * *
    (ii) Disqualified individuals. Individuals disqualified from the 
Food Distribution Program per 253.7(f)(1) and SNAP for fraud, as set 
forth in Sec.  273.16.
* * * * *
    (4) Children. A child (other than a foster child) under 18 years of 
age who lives with and is under the parental control of a household 
member must be considered a member of the household. A child must be 
considered under parental control for purposes of this provision if 
they are financially or otherwise dependent on a member of the 
household, unless State law defines such a person as an adult.
* * * * *
    (c) Income eligibility standards of public assistance, supplemental 
security income (SSI), and certain general assistance households. (1) 
Households in which all members are included in a federally aided 
public assistance or SSI grant, except as provided for in paragraph 
(a)(2)(ii) of this section, shall, if otherwise eligible under this 
part, be determined to be eligible to participate in the Food 
Distribution Program while receiving such grants without regard to the 
income of the household members.
* * * * *
    (d) * * *
    (1) * * *
    (i) The State agency shall apply uniform national income 
eligibility standards for the Food Distribution Program except for 
households in which all members are recipients of public assistance, 
SSI, paragraph (c) of this section, or certain general assistance 
program payments as provided in Sec.  283.6(c). The income eligibility 
standards shall be the applicable SNAP net monthly income eligibility 
standards for the appropriate area, increased by the amount of the 
applicable SNAP standard deduction for that area.
* * * * *
    (3) * * *
    (vii) The earned income (as defined in paragraph (e)(2)(i) of this 
section) of children who are members of the household, who are students 
at least half time and who have not attained their eighteenth birthday. 
The exclusion shall continue to apply during temporary interruptions in 
school attendance due to semester or vacation breaks, provided the 
child's enrollment will resume following the break. Individuals are 
considered children for purposes of this provision if they are under 
the parental control of another household member.
* * * * *
    (x) * * *
    (C) Any payment to volunteers under Title II (RSVP, foster 
grandparents, and others) and title III (SCORE and ACE) of the Domestic 
Volunteer Services Act of 1973 (Pub. L. 93-113), as amended. Payments 
under title I (VISTA) to volunteers shall be excluded for those 
individuals receiving federally donated USDA Foods, SNAP, or public 
assistance at the time they joined the title I program, except that 
households which are receiving an income exclusion for a VISTA or other 
title I subsistence allowance at the time of implementation of these 
rules shall continue to receive an income exclusion for VISTA for the 
length of their volunteer contract in effect at the time of 
implementation of these rules. Temporary interruptions in food 
distribution shall not alter the exclusion once an initial 
determination has been made. New applicants who are not receiving 
federally donated USDA Foods, SNAP or public assistance at the time 
they joined VISTA shall have these volunteer payments included as 
earned income.
* * * * *
    (e) Income deductions--(1) Earned income deduction. Households with 
earned income, as defined in paragraph (d)(2)(i) of this section, shall 
be allowed a deduction of twenty percent of their gross earned income. 
Earned income excluded under paragraph (e)(3) of this section shall not 
be considered earned income for the purpose of computing this 
deduction.
    (2) Dependent care deduction. Households shall also receive a 
deduction for the actual costs for the care of a child or other 
dependent when necessary for a household member to accept or continue 
employment or attend training or pursue education which is preparatory 
to employment.
    (3) Child support deduction. Households will receive a deduction 
for legally required child support payments paid by a household member 
to or for a nonhousehold member, including payments made to a third 
party on behalf of the nonhousehold member (vendor payments). The State 
agency must allow a deduction for amounts paid towards overdue child 
support (arrearages). Alimony payments made to or for a nonhousehold 
member cannot be included in the child support deduction.
    (4) Excess medical deduction. Households must receive a medical 
deduction for that portion of medical expenses in excess of $35 per 
month, excluding special diets, incurred by any household member who is 
elderly or disabled as defined in Sec.  253.2. Spouses or other persons 
receiving benefits as a dependent of a Supplemental Security Income 
(SSI), or disability and blindness recipient are not eligible to 
receive this deduction; however, persons receiving emergency SSI 
benefits based on presumptive eligibility are eligible for this 
deduction. The allowable medical costs are those permitted at 7 CFR 
273.9(d)(3) for the Supplemental Nutrition Assistance Program (SNAP).

[[Page 54932]]

    (5) Shelter/utility standard deduction. Households that incur 
monthly shelter and utility expenses will receive a shelter/utility 
standard deduction. The household may choose to receive a standard 
deduction or to provide actual expenses, subject to the provisions 
below.
    (i) The household must incur, on a monthly basis, at least one 
allowable shelter/utility expense. The allowable shelter/utility 
expenses are those permitted at 7 CFR 273.9(d)(6)(ii) for SNAP.
    (ii) The shelter/utility standard deduction amounts are set by FNS. 
The standard deductions are adjusted annually to reflect changes to 
SNAP maximum monthly excess shelter expense limits per 7 CFR 
273.9(d)(6)(ii). FNS will advise the State agencies of the updates 
prior to October 1 of each year.
    (iii) Households that select actual expenses, may claim expenses up 
to the amount that does not exceed 50 percent of their net monthly 
income.
0
37. Amend Sec.  253.7 by revising paragraph (a)(6)(i)(C) paragraph 
heading, and paragraphs (a)(6)(i)(D) and (a)(6)(v) to read as follows:


Sec.  253.7  Certification of households.

    (a) * * *
    (6) * * *
    (i) * * *
    (C) Medical expense deduction. * * *
    (D) Shelter/utility standard deduction. A household must incur, on 
a monthly basis, at least one allowable shelter/utility expense in 
accordance with 7 CFR 253.6(e)(5)(i) to qualify for the shelter/utility 
deduction. The State agency must verify that the household incurs the 
expense. If the household chooses to provide actual expenses, then the 
State agency must obtain verification for each shelter/utility 
deduction that the household wishes to deduct.
* * * * *
    (v) Verification for recertification. At recertification, the State 
agency shall verify a change in gross income if the source has changed 
or the amount has changed by more than $100 per month since the last 
time the gross income was verified. State agencies may verify income 
which is unchanged or has changed by $100 per month or less, provided 
verification is, at a minimum, required when information is 
questionable as defined in paragraph (a)(6)(ii) of this section. All 
other changes reported at the time of recertification shall be subject 
to the same verification procedures as apply at initial certification. 
Unchanged information, other than income, shall not be verified at 
recertification unless the information is questionable as defined in 
paragraph (a)(6)(ii) of this section.
* * * * *
0
38. Revise Sec.  253.10 to read as follows:


 Sec.  253.10  USDA Foods inventory management, storage, and 
distribution.

    (a) Control and accountability. The State agency shall be 
responsible for the issuance of commodities to households and the 
control of and accountability for the commodities upon its acceptance 
of the commodities at time and place of delivery.
    (b) USDA Foods inventories. The State agency shall, in cooperation 
with the FNS Regional office, develop an appropriate procedure for 
determining and monitoring the level of USDA Foods inventories at 
storage facilities and at each local distribution point. The State 
agency shall maintain the inventories at proper levels taking into 
consideration, among other factors, household preferences and the 
historical and projected volume of distribution at each site. The 
procedures shall provide that USDA Foods inventories at each storage 
facility and each local distribution point are not in excess, but are 
adequate for, an uninterrupted distribution of USDA Foods.
    (c) Inventory management and control. The State agency shall as a 
minimum ensure that: all USDA Foods are stored and inventory is 
maintained per Sec. Sec.  250.12 and 250.14 of this chapter.
    (d) Distribution. The State agency shall distribute USDA Foods only 
to households eligible to receive them under this part. If the State 
agency uses any other agency, administration, bureau, service or 
similar organization to effect or assist in the certification of 
households or distribution of USDA Foods, the State agency shall impose 
upon such organization responsibility for determining that households 
to whom USDA Foods are distributed are eligible under this part. The 
State agency shall not delegate to any such organization its 
responsibilities to the Department for overall management and control 
of the Food Distribution Program. The State agency shall as a minimum 
ensure that:
    (1) Notification is provided to certified households of the 
location of distribution sites and days and hours of distribution.
    (2) An adequate supply of USDA Foods which are available from the 
Department is on hand at all distribution sites.
    (3) Sufficient distribution sites, either stationary or mobile, are 
geographically located or routed in relation to population density of 
eligible households.
    (4) Days and hours of distribution are sufficient for caseload size 
and convenience.
    (5) Households are advised they may refuse any USDA Foods not 
desired, even if the USDA Foods are prepackaged by household size.
    (6) Emergency issuance of USDA Foods will be made to households 
certified for expedited service in accordance with the provisions of 
Sec.  253.7(a)(9).
    (7) Eligible households or authorized representatives are 
identified prior to the issuance of USDA Foods.
    (8) Authorized signatures are obtained for USDA Foods issued and 
the issue date recorded.
    (9) Posters are conspicuously displayed advising program 
participants to accept only those USDA Foods, and in such quantities, 
as will be consumed by them.
    (10) Complete and current records are kept of all USDA Foods 
received, issued, transferred, and on hand and of any inventory 
overages, shortages, and losses.
    (11) A list of USDA Foods offered by the Department is displayed at 
distribution sites so that households may indicate preferences for 
future orders.
    (e) Improper distribution or loss of or damage of USDA Foods. State 
agencies shall take action to obtain restitution in connection with 
claims arising in their favor for improper distribution, use or loss, 
or damage of USDA Foods in accordance with Sec.  250.16 and 250.17 of 
this chapter.
    (f) Damaged or out-of-condition USDA Foods. The State agency shall 
immediately notify the appropriate FNS Regional Office if any USDA 
Foods are found to be damaged or out- of-condition at the time of 
arrival, or at any subsequent time, whether due to latent defects or 
any other reason. The FNS Regional Office shall advise the State agency 
of the appropriate action to be taken with regard to such USDA Foods. 
If the USDA Foods are declared unfit for human consumption in 
accordance with Sec.  250.15 of this chapter, they shall be disposed of 
as provided for under that section. When out-of- condition USDA Foods 
do not create a hazard to other food at the same location, they shall 
not be disposed of until the FNS Regional Office or the responsible 
commodity contractor approves. When circumstances require prior 
disposal of a commodity, the quantity and manner of disposition shall 
be reported to the appropriate FNS Regional Office. If any damaged or 
out-of-condition USDA

[[Page 54933]]

Foods are inadvertently issued to a household and are rejected or 
returned by the household because the USDA Foods were unsound at the 
time of issuance and not because the household failed to provide proper 
storage, care or handling, the State agency shall replace the damaged 
or out-of-condition USDA Foods with the same or similar kind of USDA 
Foods which are sound and in good condition. The State agency shall 
account for such replacements on its monthly inventory report.
0
39. Add Sec.  253.12 to read as follows:


253.12  Administrative Waivers.

    (a) The Administrator of the Food and Nutrition Service may waive 
or modify specific regulatory provisions contained in this part for one 
or more State agencies. Waivers may be issued following a State agency 
request or at the discretion of FNS. Waivers may be approved only in 
the following situations:
    (1) The specific regulatory provision cannot be implemented due to 
extraordinary temporary situations;
    (2) FNS determines that the waiver would result in a more effective 
and efficient administration of the program; or
    (3) Unique geographic conditions within the geographic area served 
by the administering agency preclude effective implementation of the 
specific regulatory provision and require an alternate procedure.
    (b) FNS shall not approve waivers when:
    (1) The waiver would be inconsistent with the provisions of the 
Food and Nutrition Act of 2008; or
    (2) The waiver would result in material impairment of any statutory 
or regulatory rights of participants or potential participants.
    (c) FNS shall approve waivers for a period not to exceed one year 
unless the waiver is for an on-going situation. If the waiver is 
requested for longer than a year, appropriate justification shall be 
required and FNS will determine if a longer period is warranted and if 
so, the duration of the waiver. Extensions may be granted provided that 
State agencies submit appropriate justification to FNS.
    (d) When submitting requests for waivers, State agencies shall 
provide compelling justification for the waiver in terms of how the 
waiver will meet the conditions of paragraphs (a)(1), (a)(2), and/or 
(a)(3) of this section. At a minimum, requests for waivers shall 
include but not necessarily be limited to:
    (1) Reasons why the waiver is needed;
    (2) Anticipated impact on service to participants or potential 
participants who would be affected;
    (3) Anticipated time period for which the waiver is needed; and
    (4) Thorough explanation of the proposed alternative provision to 
be used in lieu of the waived or modified regulatory provision.

PART 253 [Amended]

0
40. In addition to the amendments above, amend part 253 by:
0
a. Removing the word ``commodities'' wherever it appears and adding, in 
its place, the words ``USDA Foods'';
0
b. Removing the words ``Food Stamp'' and ``Food Stamp Program'' 
wherever they appear and adding, in their place, the word ``SNAP''.

PART 254--Administration of the Food Distribution Program for 
Indian Households in Oklahoma

0
41. The authority citation for part 254 continues to read as follows:

    Authority:  Pub. L. 97-98, sec. 1338; Pub. L. 95-113.40.

0
42. Amend Sec.  254.2 by revising paragraphs (a), (b), and (d) and 
removing paragraph (h) to read as follows:


Sec.  254.2  Definitions.

* * * * *
    (a) Exercises governmental jurisdiction means the exercise of 
authorities granted to ITOs under the Oklahoma Indian Welfare Act of 
1936 or by BIA regulations (25 CFR part 81 et. seq.).
    (b) FNS service area means the areas over which FNS has approved 
the food distribution program in Oklahoma.
* * * * *
    (d) Indian tribal household means a household in which at least one 
household member is recognized as a tribal member by any Indian tribe, 
as defined in Sec.  253.2(d) of this chapter.
* * * * *


Sec.  254.5  [Amended]

0
43. Amend Sec.  254.5 by removing paragraph (b) and redesignating 
paragraph (c) as paragraph (b).

PART 254 [Amended]

0
44. Amend part 254 by removing the word ``commodities'' wherever it 
appears and adding, in its place, the words ``USDA Foods''.

Stacy Dean,
Deputy Under Secretary, Food, Nutrition and Consumer Services.
[FR Doc. 2023-17467 Filed 8-10-23; 4:15 pm]
BILLING CODE 3410-30-P